Many California employees are starting to return from furloughs and remote work which was used to comply with state regulations and mitigate risk during the COVID-19 pandemic. This includes may elderly and pregnant workers who are at higher risk for severe complications if they become infected with Coronavirus. Employers are prohibited by the federal Equal Employment Opportunity Commission (EEOC) from keeping these at-risk employees from working if they want to; this may lead to discrimination claims. Discrimination claims also arise from violations of the Americans with Disabilities Act (ADA), which requires reasonable accommodations for employees with disabilities or who have elevated risk for serious cases of COVID-19. It is important for employees as well as employers to know California’s Department of Fair Employment and Housing (DFEH) mandates that any employer with five or more workers make reasonable accommodations if appropriate; however, many employers and employees alike fail to understand what that means. EEOC Accommodation Guidance To help clarify what reasonable accommodations for high-risk employees in the COVID-19 pandemic is the EEOC created additional guidance for employers on workplace protection rules. Employers must provide a safe work environment – this means working with employees who have disclosed underlying or pre-existing health conditions, which make them at-risk employees under law. When it comes to COVID-19, the Centers for Disease Control and Prevention determined workers are at elevated risk of a severe COVID-19 case if they are immunocompromised or have any of the following:
- Chronic kidney disease currently requiring dialysis;
- Liver disease;
- Severe obesity;
- Chronic lung disease;
- Diabetes; and/or
- Moderate or severe asthma.
- How a proposed accommodation addresses the limitation;
- How an accommodation enables the worker to perform essential functions of a job; or
- How their disability limits them.
- Apply a direct threat standard, which means the employee must pose direct threat to themselves or others to be barred from the workplace. This means a reasonable accommodation can’t eliminate or reduce a significant risk to themselves or others of substantial harm to health or safety.
- Conduct an individualized assessment on the worker’s disability based on reasonable medical judgment.