As employers direct their remote staffs to return to the workplace, many are trying to maneuver through the individual needs of some of their at-risk employees. However, they’re not obligated to provide them accommodations unless they pose a direct threat, says the EEOC.
In new pandemic-specific guidance, the EEOC reiterates an employer’s normal obligations for reasonable accommodations while imparting new measures they should take now.
‘Direct threat’ standard
First, employers need to understand the definition of a “direct threat” – the standard employers must meet in order to take any adverse action (reassignment, change of job duties, etc.) against employees who are at higher risk for the coronavirus.
COVID-19 screenings. Firms can take temperatures or make coronavirus-related inquiries before allowing staff to enter the workplace “because an individual with the virus will pose a direct threat to the health of others,” says the EEOC.
But the process must be consistent for every employee. Employers must screen at-risk employees (age 65+, diabetics, those with asthma, etc.) the same as all other staffers.
Since the ADA protects employees with disabilities, employers may not exclude a high-risk employee from the workplace or take any action against them unless their disability poses a direct threat to their health or the health of others, says the EEOC.
Direct threat assessment. Employers will need to conduct an individual assessment of an employee’s medical condition and their ability to perform their job, along with the severity of the pandemic in their geographical area.
Employers also need to assess if the threat can be eliminated by temporarily modifying a work schedule or reassigning them to a different job that allows remote work. Otherwise, that employee wouldn’t be considered a direct threat unless accommodating them poses undue hardship on the firm, says the EEOC.
Accommodation requests
If an at-risk employee requests an accommodation, the EEOC says a firm is allowed to discuss:
• how the disability creates a limitation
• how an accommodation will enable them to continue performing their essential job functions, and
• whether another accommodation could solve the issue.
An employer can also request additional medical documentation if a particular accommodation isn’t reasonable. The EEOC recommends employers not only offer additional PPE (masks, gloves, etc.) and erect physical barriers, but be creative and flexible in offering accommodations.
For more information
The Equal Employment Opportunity Commission (EEOC) processes more than 48,000 discrimination charges annually.
That’s a staggering number – and it’s expected to rise in 2020.
If you already have an internal plan on how to handle EEOC complaints, it’s time to update it. And if you don’t have a plan, you need to develop one before it’s too late.
Our live workshop How to Prevent – and Handle – EEOC Complaints at 1 pm ET on July 22, and then available on-demand, is the perfect place to start.
We’ll provide a detailed overview of the EEOC complaint process and teach you exactly how to respond if a complaint is filed against your organization. You’ll learn what to expect if you find yourself with an EEOC complaint, including:
- How to identify exactly what’s being charged
- How long EEOC investigations typically take
- Who an EEOC investigator may question without the employer present
- How a complaint filed on the state level can end up with the EEOC (and vice versa!)
- And more!
About the speaker
Max Muller has more than 40 years of business experience as an attorney, businessman and professional trainer.
He is the bestselling author of several books, including “The Manager’s Guide to HR: Hiring, Firing, Performance Evaluations, Documentation, Benefits, and Everything Else You Need to Know, Second Edition.”
More details and registration information are available here.
