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., Scott M. Lepak, Kate Frederickson

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.

1. 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 harm” to the employee’s own health.
2. A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence.
3. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and their particular job duties.
   • A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.
   • Even if an employer determines that an employee’s disability poses a direct threat to the employee’s own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation (absent undue hardship).
   • The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. This can involve an interactive process with the employee.
   • If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework).
   • An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to themselves that cannot be reduced or eliminated by reasonable accommodation.

Waivers are not an option – in Minnesota, anyway

Recognizing that an employee controls their own destiny in this area, another question that arises is whether an employer may ask or require a worker to sign a waiver of liability that prevents them from filing a claim for workers’ compensation if they contract COVID-19.

The answer from the State is that agreements to waive workers’ compensation rights are prohibited by Minnesota law. Employees cannot sign away the right to file a workers’ compensation claim and an employer may not discriminate against a worker for reporting an injury. The law also prohibits employers from encouraging employees to not report an injury, asking an employee to agree to hold an employer harmless for an injury, or relinquishing rights an employee may have to workers’ compensation benefits.

An employer is liable for civil damages to an employee for obstructing, discharging, or threatening to discharge an employee for seeking workers’ compensation benefits. Damages can be awarded to the employee for reduced workers’ compensation benefits, costs, and reasonable attorney fees caused by the employer’s violation of this law. The employer may also be liable for punitive damages not to exceed three times the amount of any compensation benefit to which the employee is entitled. Damages awarded cannot be offset by any workers’ compensation benefits to which the employee is entitled.

Read answers to commonly asked questions by employers related to COVID-19 from the Minnesota Department of Labor and Industry.
As with any part of this pandemic, this interim guidance is subject to considerable change. In the event that you have a specific scenario or would like further guidance on this subject, please feel free to contact Scott.
Contact the knowledgeable attorneys of Barna, Guzy & Steffen with questions related to any employment issues.