{"id":6610,"date":"2020-06-25T15:51:55","date_gmt":"2020-06-25T15:51:55","guid":{"rendered":"https:\/\/www.bgs.com\/?p=6610"},"modified":"2020-08-31T16:15:30","modified_gmt":"2020-08-31T16:15:30","slug":"covid-19-return-to-work-what-can-an-employer-do-when-a-higher-risk-employee-wishes-to-return-to-work","status":"publish","type":"post","link":"https:\/\/www.bgs.com\/blog\/2020\/06\/25\/covid-19-return-to-work-what-can-an-employer-do-when-a-higher-risk-employee-wishes-to-return-to-work\/","title":{"rendered":"COVID-19 Return to Work: What Can an Employer Do When a Higher Risk Employee Wishes to Return to Work?"},"content":{"rendered":"

In another recent blog post<\/a>, 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\u2019s best interests, an employer is not permitted to assume the role of a benevolent parent \u2013 it is within the employee\u2019s 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.<\/p>\n

According to the EEOC<\/a>, if an employer is concerned about the employee\u2019s 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 \u201chigher risk for severe illness\u201d if the employee gets COVID-19.<\/p>\n

This action under the ADA is not allowed unless the employee\u2019s disability poses a \u201cdirect threat\u201d to the employee\u2019s health that cannot be eliminated or reduced by reasonable accommodation.<\/p>\n

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  1. The \u201cdirect threat\u201d 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 \u201csignificant risk of substantial harm\u201d to the employee\u2019s own health.<\/li>\n
  2. A direct threat assessment cannot be based solely on the condition being on the CDC\u2019s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee\u2019s disability \u2013 not the disability in general \u2013 using the most current medical knowledge and\/or on the best available objective evidence.<\/li>\n
  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.\u00a0Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee\u2019s own health (for example, is the employee\u2019s disability well-controlled), and their particular job duties.\n