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EEOC expands COVID-19 workplace guidance


Employers cannot exclude employees from working simply because they have an underlying medical condition that the Centers for Disease Control says may pose a higher risk of severe illness if they contract COVID-19, the U.S. Equal Employment Opportunity Commission said Thursday.

This is among the updated guidance the EEOC issued as to how employers can avoid violating the Americans with Disabilities Act, the Rehabilitation Act and other employment laws in coping with the virus. Experts have said guidance the agency has issued that sanctions COVID-19 testing raises many questions.

The latest guidance states that if an employer is concerned about an employee’s health being jeopardized upon returning to the workplace, the employer cannot exclude the employee “solely because the worker has a disability that places him at a ‘higher risk for severe illness’” if he gets COVID-19.

Such an action is not allowed unless the employee’s disability poses a “direct threat” to his health, and cannot be eliminated or reduced by reasonable accommodation, it states.

“The ADA direct threat requirement is a high standard,” the guidance states. A determination on this issue “must be an individualized assessment based on a reasonable medical judgment about his employee’s disability not the disability in general using the most current medical knowledge and/or on the best available objective evidence,” it states.

The guidance issued Tuesday also adds information on what an employee needs to do to request a reasonable accommodation, and examples of accommodation.

The guidance states the employer must be informed the worker needs a change for a reason related to a medical condition, which may be requested in conversation or writing. The employer may then ask questions or seek medical documentation.

Examples of accommodation include additional or enhanced protective gowns, masks, gloves or other gear, as well as protective measures including barriers that separate an employee with a disability from coworkers, and the elimination or substitution of  “marginal functions,” as distinguished from a particular position’s essential functions. Accommodations may also include temporary modification of work schedules.

 More insurance and risk management news on the coronavirus crisis here.