How to Accommodate High-Risk Workers Without Discriminating

The Equal Employment Opportunity Commission released guidance for employers to legally get high-risk employees back to work during the health pandemic. Navigating the needs of high-risk workers in the right way is critical for employers to avoid inadvertently discriminating against an employee on the basis of disability. This post will address the Americans with Disabilities Act, discuss possible accommodations for high-risk workers, and consider other relevant family situations where accommodation is optional.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) was enacted in 1990. The ADA prohibits discrimination against people with disabilities in all areas of public life, including work. The intent of the law is to ensure people with disabilities have access to the same rights and opportunities of others. Title I of the ADA guarantees equal opportunities for individuals with disabilities in employment. According to Title I of the ADA, employers must provide reasonable accommodations to employees with disabilities. A reasonable accommodation is an adjustment to the job or work environment of employees with a disability that would allow them to perform essential job functions. Accommodations are considered reasonable if they do not create an undue hardship on the employer. When employers fail to make reasonable accommodations for physical or mental disabilities, disabled employees can report the organization to the Equal Employment Opportunity Commission (EEOC), who is responsible for enforcing the ADA.

Workplace Accommodations

The EEOC issued guidance encouraging employers to be proactive in accommodating employees who are considered high-risk so they can safely come back to work during the current health crisis. According to the Center for Disease Control (CDC), individuals with underlying medical conditions are at higher risk for severe illness from COVID-19. Employers concerned about protecting high-risk employees may have the impulse to initiate a conversation with high-risk employees but should refrain from doing so. Without a request for accommodation from the at-risk employee, initiating a discussion with the employee about a medical condition would not be lawful under the ADA. Instead, the EEOC recommends that employers educate all employees on the reasonable accommodation process and invite them to request accommodations (such as flexible work arrangements) if needed for a disability. According to the EEOC, this is lawful and best practice.

The EEOC suggests that employers communicate their willingness to accommodate all reasonable requests for individuals with medical conditions and identify who employees should contact to make workplace accommodation requests.

Taking a proactive and flexible approach, even though it’s not required by the law, may also help develop goodwill within the organization and retain workers.

Possible accommodations will depend on the needs of each employee and the nature of the job they perform. For some employees, teleworking to work might be the best possible accommodation. For workers whose job requires them to be onsite, duties that minimize their contact with people could be the right accommodation. Of course, there is still the analysis of whether these accommodations are an undue burden for the employer.

Other Relevant Conditions and Situations

Other conditions and situations for which employers may wish to make accommodations but are not required to do so under the ADA are for older employees, pregnant workers, and employees with caregiving responsibilities.

According to the CDC, older individuals are at higher risk for severe illness from COVID-19. While employers may be tempted to treat older workers differently because of the higher risk, they should be careful not to discriminate against older employees. The Age Discrimination in Employment Act (ADEA) prohibits discrimination against individuals age 40 or older. Under the ADEA, an employer cannot merely exclude older employees from coming back to work, even if it is out of concern for their safety, because doing so would amount to age discrimination. Unlike the ADA, the ADEA does not require an employer to make reasonable accommodations for older workers. Employers should keep in mind that even though there is no legal obligation to accommodate older workers under the ADEA, if that older worker has an ADA qualifying health condition, then the employer may need to consider an accommodation if requested.

Similarly, employers cannot exclude pregnant employees from coming back to work because that would be sex discrimination, even if the motivation of the employer is to protect the pregnant worker. The EEOC notes that pregnant employees concerned about exposure to COVID-19 or advised by a health care provider not to do to the workplace do not have to be accommodated under the ADA. If a pregnancy-related medical condition constitutes a disability, then the pregnant worker may be entitled to a reasonable accommodation under the ADA. To the extent that the employer has extended flexibility (teleworking, schedule change, duty change, or leave of absence) to other workers, it must make the same opportunities available to pregnant workers.

Finally, the EEOC encourages employers to accommodate childcare-related needs for families to build goodwill and retain workers. Due to the health pandemic, some schools and childcare centers are limited in their offerings to parents, and as a result, some workers may have to be home taking care of children. The ADA does not require reasonable accommodations for an employee’s inability to work because of childcare issues. Still, the EEOC urges employers to consider flexibility in addressing these needs (teleworking or intermittent leave). The EEOC emphasizes that the flexibility to care for children must be offered equally to male and female employees.

Conclusion

Now is the time for employers to be intentional and thoughtful regarding policy, process, and procedure in the workplace. To avoid discrimination claims and promote a positive work environment, employers should attempt to accommodate high-risk individuals and, when possible, employees with other relevant family or medical needs. By developing supportive policies and practices, employers will be more likely to retain workers and foster a positive work culture.

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Featured Image by Rebecca Sidebotham.