COVID-19 Return to Work: What Can an Employer Do When a Higher Risk Employee Wishes to Return to Work?
June 25, 2020 | Barna, Guzy & Steffen, Ltd.In another recent blog post, we addressed the issue of what employers may do when they have employees who the employer knows are at high risk. The short answer is that even if they are trying to act in the worker’s best interests, an employer is not permitted to assume the role of a benevolent parent – it is within the employee’s control to exercise their rights. Here, we go into more detail related to what an employer can do when a higher risk employee wishes to return to work. According to the EEOC, if an employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee or take adverse action solely because the employee has a disability that the CDC identifies as potentially placing the employee at “higher risk for severe illness” if the employee gets COVID-19. This action under the ADA is not allowed unless the employee’s disability poses a “direct threat” to the employee’s health that cannot be eliminated or reduced by reasonable accommodation. The “direct threat” requirement is a high standard. As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial…
Read MoreCOVID-19 Return to Work – What Can an Employer Proactively Do about the Health of a High-Risk Employee Returning to Work?
June 25, 2020 | Barna, Guzy & Steffen, Ltd.With the gradual return to work associated with the various Executive Orders, an issue that is popping up with increasing frequency is what may employers do when they have employees who the employer knows are at high risk. Read on for tips related to the health of a high-risk employee returning to work. The Basics The Centers for Disease Control and Prevention (CDC) have issued interim guidance for employers with employees at high risk. Basically, the CDC notes that when gradually scaling up activities towards pre-COVID-19 operating practices, it is important to note that certain employees are at higher risk for severe illness from COVID-19. These employees include individuals over age 65 and those with underlying medical conditions Such underlying conditions include, but are not limited to, chronic lung disease, moderate to severe asthma, hypertension, severe heart conditions, weakened immunity, severe obesity, diabetes, liver disease, and chronic kidney disease that requires dialysis. The Self-Identification Step The CDC says that: Employees at higher risk for severe illness should be encouraged to self-identify, and employers should avoid making unnecessary medical inquiries. Employers should take particular care to reduce employees’ risk of exposure to COVID-19, while making sure to be compliant with relevant Americans with Disabilities Act (ADA) and Age Discrimination in Employment Act (ADEA)…
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