Authored by: Dean R. Dietrich
A number of questions have arisen regarding the steps that must be taken by an employer when faced with an employee with an underlying medical condition that may expose the employee to severe Coronavirus symptoms. Questions have ranged from whether the employer can prohibit the employee from returning to work to what if the employee does not request any type of special consideration (accommodation) when talking about returning to work.
As you all know, the Americans with Disabilities Act (ADA) requires an employer to provide reasonable accommodation to a qualified employee with a disability except where the accommodation would cause an undue hardship. There is a provision under the ADA which provides that an employer is not required to make an accommodation if an employee would pose a “direct threat” to his/her medical condition by returning to work and performing essential job functions. While this law exists, it is unclear how it should be interpreted in instances where an employee has an underlying medical condition that could cause severe symptoms if the employee was infected by the Coronavirus.
The Equal Employment Opportunity Commission (EEOC) and the Centers for Disease Control (CDC) have identified the categories of persons who would be at high risk for severe illness if infected by the Coronavirus. These employees include:
- Older employees over age 65;
- Employees suffering from serious underlying medical conditions including:
-
- Chronic lung disease;
- Severe asthma;
- Serious heart conditions;
- Immunocompromised systems (i.e. Diabetes, cancer);
- Severe obesity (BMI 40 or higher);
- Chronic kidney disease (requiring dialysis); and
- Liver disease.
The CDC suggests that if there is an employee suffering from one of these medical conditions or at this age level or both, the employer should encourage teleworking if available and offer job duties that would minimize contact with customers and other employees.
The more challenging question is whether the underlying medical condition of the employee constitutes a “direct threat” to the employee such that the employer can decide to exclude the employee from the workplace. A decision to exclude an employee from work is a very difficult decision and requires that the employer meet a high standard. A determination must be made on an individualized basis “based on a reasonable medical judgment about the employee’s disability and not just based upon the disability in general.”
The employer must use the most current medical knowledge and the best available objective evidence when conducting that analysis of a possible direct threat. The employer must consider the following factors:
- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the potential harm will occur;
- the imminence of the potential harm;
- the severity of the Pandemic in the particular area of the employer;
- the employee’s current health;
- the job tasks regularly performed by the employee;
- the likelihood that the employee would be exposed to the virus , including measures that the employer has taken to protect all workers from being infected.
The employer also must engage in an interactive process by speaking directly with the employee and discussing the concerns of the employee and the concerns of the company in being able to protect both the employee and others.
Employers are making decisions about how to protect their employees from any spread of the virus. The Guidelines from the CDC, the WEDC, and your local Health Department are the major areas to consider. Dealing with an employee with an underlying medical condition is something that also must be looked at very closely and addressed on an individualized basis for the protection of the employee and all other employees.
We will keep you apprised of the latest news that may be of assistance to your company. However, please feel free to contact us directly if you have additional questions or concerns.
Dean R. Dietrich, Esq.
Dietrich VanderWaal, S.C.
530 Jackson Street
Wausau, WI 54403
(715) 845-9401
dietrich@dvlawgroup.com
https://www.dietrichvanderwaal.com/
