By Vin Gurrieri

Law360 (May 13, 2020, 10:05 PM EDT ) Recent U.S. Equal Employment Opportunity Commission guidance on what employers should do to accommodate workers who may be vulnerable to COVID-19 raises more questions than it answers for employers already struggling to craft reopening plans that mitigate legal risks. 

The EEOC's new guidance was posted on May 7 as part of the "Return To Work" portion of a technical assistance document the agency has periodically updated in recent weeks that addresses pandemic-related issues affecting the workplace.

The latest post revised a guidance that the anti-discrimination watchdog had released two days earlier but pulled down because it was "misinterpreted" upon becoming public.

The revised guidance clarifies that the Americans with Disabilities Act does not allow employees to be barred from going back to work solely because they are over the age of 65 or have medical conditions like serious heart problems, diabetes, asthma and severe obesity that have been identified by the Centers for Disease Control and Prevention as placing people at greater risk of becoming severely ill if they become infected with COVID-19.

But management-side lawyers told Law360 the guidance may leave employers less sure-footed as they start bringing workers back into the fold, even if their intentions are to protect them. 

"The big picture is that employers should be very hesitant to take any type of unilateral action [against] specific employees or at-risk employees out of concern of COVID-19, even if the employer's aware of the employee's medical condition that might place them in the high-risk category. That for me is the biggest takeaway," said Pankit Doshi, a California-based partner at McDermott Will & Emery LLP.

He added: "I think employers should especially be hesitant to take any actions that might be considered ... exclusionary or adverse. [The] types of legal actions that can stem from that can be very difficult to defend."

Randi May, a partner at Hoguet Newman Regal & Kenney LLP, said while the guidance wasn't a groundbreaking departure from a legal standpoint regarding how employers approach reasonable accommodations under the ADA, it "practically … [is] going to have a much broader reach" than under normal circumstances.

That's partially because people who aren't normally considered "disabled" or wouldn't seek an accommodation — like someone with a compromised immune system — may be "treated differently" because they're at a higher risk of severe illness. And as more conversations about potential accommodations take place, "the higher the risk of the employer running afoul of the guidelines or the ADA" becomes, May said.

Here, management-side lawyers offer four takeaways from the EEOC's new guidance.

New Road Map

The framework laid out in the EEOC's guidance says that businesses have to conduct a "direct threat analysis" to determine if an at-risk worker's own health is imperiled by having them return, as well as "an individualized assessment" to figure out if there is a reasonable accommodation that can mitigate the risk.

The individualized assessment must be grounded in a "reasonable medical judgment" and "objective evidence" about the particular employee's own disability, and employers should weigh a variety of factors when they conduct the assessment — such as the severity of the potential harm to the worker and the likelihood a person will be exposed to COVID-19 at work, the EEOC said.

Even if a business concludes that a worker's disability poses a direct threat to herself, the individual still can't be barred from work or have any other adverse action taken against her "unless there is no way to provide a reasonable accommodation" that doesn't pose an undue hardship on the employer, according to the agency's guidance.

Some potential accommodations listed by the EEOC include telework, leave or reassigning a worker to a different job that allows them to work in a part of a shop that is safer for them.

Fenwick & West LLP counsel Matthew Damm said the EEOC through its guidance appeared intent on ensuring businesses "don't look back at the employee population and evaluate different employees based on pre-existing conditions they know they have."

"Going back and saying, 'I know Matt has asthma, I know Steve has diabetes, therefore given the guidelines that are in place, we may consider bringing everybody else back to the office and not them,'" Damm said. "So I think that was really the main issue [the EEOC] was addressing through that guidance to remind employers that you can't do that under EEOC guidelines; it needs to be an individualized assessment based on that particular employee's condition and how it relates to the workplace."

Uncertainty Over Telework Setups

Scott McLaughlin, a partner at Eversheds Sutherland US LLP, said a central problem with the EEOC's guidance is that it prevents employers from requiring high-risk employees to continue to work from home.

While he noted no issue will exist if the employee agrees to continue working remotely, the guidance when read in context essentially prevents employers from telling at-risk workers who insist on coming back into work right away that they have to keep teleworking until the pandemic subsides.

"It's telling employers they can't exercise the level of discretion here that we as management-side employment lawyers are advising them to exercise," McLaughlin said. He added that employers "need to have a little bit of discretion" to decide when workers in the high-risk population are brought back, but that the EEOC has "at least impaired if not purported to take away an employers' ability to go slow."

The guidance also runs counter to recommendations from many state governments that employers should keep high-risk employees away from the workplace unless it can't be avoided, McLaughlin said, and "there is just a lot of conflict in all of this in terms of what are employers supposed to do."

May, however, believes the guidance does encourage the continuation of telework, but cautioned employers shouldn't approach specific employees — like someone who recently had cancer — to tell them to work remotely because of their underlying condition while having everyone else come back. If so, that could qualify as an adverse action against that employee and open up businesses to discrimination claims if some people are allowed to telework and others aren't.

"It should not be at the employer's initiative to tell particular employees 'you keep telecommuting' if the reason that they're telling them to continue telecommuting is because that person has a particular medical issue," May said. "I think a better way to handle it is perhaps to ask ... which employees want to continue to telecommute, and then make a well-reasoned business decision as to who can continue to telecommute and who can't."

Lower 'Undue Hardship' Bar

While the EEOC's guidance requires employers to explore reasonable accommodations for at-risk workers that don't present undue hardships on the business, the agency recently lowered the bar for what constitutes such a hardship during the pandemic, according to Barry Hartstein of Littler Mendelson PC.

Hartstein pointed to a guidance the EEOC issued in mid-April in which the agency said some accommodations that would not have posed an undue hardship before the pandemic may pose one now.

"The agency [in talking] about accommodations [said] you want to be as flexible as possible and, just as importantly, the 'undue hardship' is a lower standard than it's ever been," Hartstein said. "That certainly did surprise me, but [the EEOC] basically said because of the reality of the world we're in today, the costs that are involved and the number of people that are impacted, there may be a lower threshold before undue hardship is met."

But Hartstein noted that the general theme of the EEOC's latest guidance is consistent with previous positions it has taken on issues related to COVID-19, saying the "one basic standard" that runs through all of them is a shunning of "blanket exclusions."

"To me, when I thought through the way the agency has approached it to date, I actually thought it was somewhat consistent with the approach they've taken up until now," Hartstein said. "If you think about the way the courts have approached it as well, you really need to do more of an individualized assessment. So, I really think that would be the general theme that employers should be thinking about."

Need for Caution in Reintegrating Workers

The issue of high-risk workers is just one of many employers are struggling to resolve as they look to finalize plans for how to restart their businesses and bring back workers who have either been laid off or relegated to working off-site.

Regardless of whether workers are in the pool of high-risk individuals as outlined by the CDC, Hartstein said a primary focus for employers should be making sure to take a consistent approach and "take care that you're not stigmatizing" or stereotyping people in a protected group when the issue of accommodations arises.

"I really think that unless you have some objective evidence that they're showing symptoms in some way shape or form that makes them some sort of a risk, the accommodation process should basically be the same, and you should try to be as consistent as possible," he said. "Otherwise, it would look like you're trying to single them out in some way."

May raised a similar concern, saying employers should exercise caution about the kind of accommodation they actually do provide. She offered Plexiglass as an example, saying that putting it up for just one person and not the entire workforce could cause someone with an underlying medical condition to be singled out.

"I feel like if you're not going to put up Plexiglass for everybody but you only do it for one or two people, it stands out like a huge red flag, and it's a big mark on that employee that they have some sort of medical issue," she said. "Maybe that breaches confidentiality, and even if it doesn't, it's certainly going to make that employee feel awfully strange and uncomfortable. I think that would really be turning the guidance on its head because I don't think that's what it was intended to do."

--Editing by Philip Shea and Emily Kokoll.

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