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Accommodating At-Risk Employees During COVID-19

With some businesses reopening throughout the United States, you may be considering having some of your employees come back to the office. While some employees may be eager to feel a sense of normalcy again and interact with coworkers (while social distancing of course), others may be concerned about returning to the office. 

Employees who are considered “at-risk” may feel that coming back to the workplace will jeopardize their health due to a pre-existing health condition. If this is the case, you may be required to accommodate individuals who are at high risk for severe illness from COVID-19.  

Who are At-Risk Employees?

If an employee has a disability or condition that makes them at risk for contracting or having complications from COVID-19, they can request accommodations from their employer. According to the CDC, employees that have higher risk from COVID-19 include individuals that are 65 or older, are pregnant, or who are immunocompromised. Having one of the following conditions may also increase your risk of complications from COVID-19:

  • Chronic kidney disease who are undergoing dialysis
  • Chronic lung disease
  • Diabetes
  • Liver disease
  • Moderate to severe asthma

The CDC also provides information on conditions that can cause individuals to be immunocompromised:

  • Bone marrow transplantation
  • Cancer treatment
  • Immune deficiencies
  • Organ transplantation
  • Poorly controlled AIDS or HIV
  • Prolonged use of medications that weaken the immune system 

Employees who have pre-existing conditions or health concerns may be experiencing heightened anxiety about having to return to work. Working to accommodate their needs with empathy and thoughtfulness can help alleviate their concerns and keep them healthy and safe.

Engage in the Interactive Process

The first step when any employee requests an accommodation because of a disability, is to engage in the interactive process. This is the process regardless of COVID-19 concerns. The interactive process is a discussion regarding an employee’s disability. During this conversation, the employee shares the nature of their disability, any limitations that may affect their ability to perform their job duties and discuss any requested accommodations.

As part of this interactive process, employers should:

  • Review the accommodation request. This request does not have to be in writing, but having documentation is best practice.
  • Gather information. Requesting medical documentation may be helpful in fully understanding the employee’s need for accommodation. The employee must give permission for doctors to provide employers with information or answer questions regarding their disability.
  • Identify and discuss with the employee different accommodation options that might be suitable and help the employee performing their roles essential duties/functions.
  • Assess how practical the accommodation is. An employer is not required to provide an accommodation that would cause “undue hardship” for their organization. Employers can choose to provide the accommodation that is the least expensive or the easiest to provide.

Remember to documenting each step of the interactive process. Keep all notes and correspondences regarding the interactive process for each individual that requests an accommodation. 

Providing an Accommodation

The EEOC has provided guidance on COVID-19 and the Americans with Disabilities Act (ADA), and outlined how to accommodate individuals whose disability puts him or her at greater risk from COVID-19.

Providing at-risk employees with the option of working remotely may be a simple solution and one that is suggested by the EEOC. Working remotely allows employees to completely remove themselves from the workplace and potential exposure. Unfortunately, not all positions may be able to be done remotely.

When working remotely, or telecommuting, is not an option, the EEOC recommends investing in barriers and personal protective equipment to help eliminate possible exposure. This could include:

  • Gloves, masks, and hand sanitizer to reduce infection 
  • Plexiglass or tables as barriers to ensure distance between customers and coworkers
  • Designating one-way aisles to limit interaction

Employers can also look into temporarily changing work schedules, shifts, or temporary transferring at-risk individuals into different departments or roles to limit exposure. It is important that employers remain flexible and willing to help reduce exposure for at-risk employees. If employers and employee work together, they can find a reasonable accommodation that works for both them.

Mental Health Conditions

Many employees are experiencing high levels stress during the COVID-19 pandemic. Feelings of isolation, loneliness, fear, and anxiety are prevalent as people try to navigate this unprecedented time. While many employees may be feeling stressed, employees with certain mental health conditions may be considered “at-risk.” Some pre-existing mental health conditions make it harder for individuals to handle the disruptions that COVID-19 has caused. Mental Health disorders are covered by the Americans with Disability Act., and an employee who is struggling with their mental health due can request accommodations. These mental health conditions include, but are not limited to, anxiety disorders, OCD, depressive disorders, and post-traumatic stress disorders.

As with any accommodation request, employers will need to determine whether the condition is a disability and discuss with the employee any accommodations that may aid them in their ability to complete their essential job duties. The steps of the interactive process must be followed, and employers must explore any alternative accommodations that may meet an at-risk employee’s need.

Just because an employee’s pre-existing condition may not be visible, does not mean that their request for accommodations are not valid. Employers must take all the same steps as they would for any other employee with a disability.

Providing a Safe Environment for All Workers

Regardless of pre-existing health conditions, employees are likely to be anxious about returning to the workplace. Employers have a duty to ensure that the workplace is a safe and should work to alleviate any health concerns by implementing safety procedures and social distancing measures. It is also important to document all good faith efforts to reduce or eliminate COVID-19 hazards and exposure in the workplace. 

Under the Occupational Safety and Health Act (the Act), employers must provide a safe work environment for their workers and comply with OSHA standards. This includes:

  • Assessing the level of risk of COVID-19 exposure for each of their employees or each role
  • Training employees on new rules/policies pertaining to proper workplace sanitation and hygiene and enforcing these rules
  • Assessing and providing employees with appropriate PPE and training them on its proper use, maintenance, and cleaning
  • Assessing and implementing appropriate administrative controls such as temporary shutdowns to sanitize, staggering shifts, limiting customer access, etc.
  • Consider taking employee temperatures and sending any workers who have fevers home.

Despite employer efforts to provide a safe working environment, employees may still be nervous about returning to the workplace even if they are not considered “at-risk”. If this is the case, listen empathetically to your employee and outline all the steps the company has taken to reduce COVID-19 exposure. Have a conversation with your employee and address their specific concerns. 

Being open and honest with employees will help avoid any unneeded escalation. Additionally, you can remind employees that they may be entitled to a leave of absence under the Families First Coronavirus Response Act, which may allow them additional time to stay home if they qualify. Employees do have some legal rights to refuse to come to work; however, they cannot refuse to come to work if their concerns have been successfully addressed by the employer or if their fear is not based on fact.

Communication is Key

Two-way communication is the best way to ensure that all employees feel safe in the workplace. It is the best way to address concerns and ensure that employees understand what the organization has done to reduce or eliminate COVID-19 exposure.

This unprecedented time can be even more stressful for high-risk employees that may be susceptible to COVID-19. Employers must listen and work to accommodate these workers and empower them to do their job safely. Following the steps of the interactive process and working to comply with ADA, gives employees more flexibility in how they navigate the COVID-19 in a way that is best for their health.

For more information on creating a healthy and positive workplace during the COVID-19 pandemic, please visit our Return to Work Resources page.

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Disclaimer: The information and resources provided herein are not a substitute for experienced legal counsel and does not constitute legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and any recommendations are based upon HR best practices and procedures. We recommend you consult an attorney for legal guidance.

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