Estimated reading time: 11 minutes
No, COVID is not over.
People are still getting COVID, being hospitalized by COVID, and dying from COVID. I’m not trying to be insensitive or melodramatic. It’s the truth. And regardless of our personal views about COVID, as HR professionals, we’re still dealing with COVID because employees are calling in sick for themselves or because a family member is sick. Or employees might be asking for an accommodation because of COVID. That’s what I want to talk about today.
Several weeks ago, I spoke with Carrie Cherveny from HUB International about long COVID and what it might mean for employers. Carrie is a friend and she’s also a very knowledgeable labor attorney in HUB’s risk services division. She works with clients to develop strategies that ensure compliance and risk mitigation when it comes to insurances and employment practice liability. She’s been helping us throughout the pandemic to understand matters that HR professionals need to think about.
Today, we want to take the conversation one step further and discuss how COVID-19 and/or long COVID might impact the Americans with Disability Act (ADA). Specifically, when it comes to the concept of “direct threat” and job accommodations.
As always, please remember that Carrie’s comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed COVID questions, they should be addressed directly with your friendly neighborhood labor and employment attorney.
Carrie, thanks so much for being with us. Let’s start with a definition. What is “direct threat”? Can you give us an example?
[Cherveny] That’s a great question. Let’s first start with the regulatory definition of a direct threat.
Direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. 29 CFR § 1630.2(r)
According to the Equal Employment Opportunity Commission (EEOC), an employer’s determination of whether an individual poses a direct threat includes consideration of four factors:
- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the potential harm will occur; and
- the imminence of the potential harm.
Employers may require documentation from a heath care provider to substantiate both the nature and scope of the disabling condition and the presence of a direct threat. However, the scope of an employer’s medical inquiries is strictly limited by the ADA. To help avoid prohibited medical inquires, the Job Accommodation Network (also known as JAN) provides employers with vast resources including some excellent sample forms and policies. Under some circumstances, an employer may be required to pay the costs associated with the visit(s) to the health care provider. Employers should speak with outside counsel.
With respect to examples of a direct threat, the EEOC provides a nice example:
A crane operator works at construction sites hoisting concrete panels weighing several tons. A rigger on the ground helps him load the panels, and several other workers help him position them. During a break, the crane operator appears to become light-headed, has to sit down abruptly, and seems to have some difficulty catching his breath. In response to a question from his supervisor about whether he is feeling all right, the crane operator says that this has happened to him a few times during the past several months, but he does not know why.
The employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat and, therefore, may require the crane operator to have a medical examination to ascertain whether the symptoms he is experiencing make him unfit to perform his job. To ensure that it receives sufficient information to make this determination, the employer may want to provide the doctor who does the examination with a description of the employee’s duties, including any physical qualification standards, and require that the employee provide documentation of his ability to work following the examination.
Organizations should always be aware of direct threat. But why should organizations be paying specific attention to it now?
[Cherveny] Back in March 2020, the EEOC declared COVID-19 a direct threat to the health and safety to employees in the workplace. This declaration triggered expanded rights for employers to reduce or eliminate the direct threat of COVID-19 in the workplace. Specifically, the EEOC’s direct threat declaration opened the door for employers to perform COVID-19 health screening for employees entering the workplace or attending live work-related meetings. While the EEOC has not removed the direct threat declaration, it has clarified and refined its guidance regarding COVID-19 health screening.
On July 12, 2022, the EEOC updated is vast COVID FAQ to clarify an employer’s ability to engage in COVID-19 medical screening. Employers seeking negative tests from employees entering the workplace or a release from a healthcare provider to return to work after experiencing COVID-19 may do so for two reasons.
First, COVID-19 is not always a disabling condition so such inquiries would not constitute a prohibited medical inquiry. Second, even if the employee’s experience of COVID-19 is a disabling condition under the ADA, these inquires would need to be justified under the ADA standard requiring that such employee inquiries be job-related and consistent with business necessity. Using the crane operator example, the request meets the “business necessity” standard because it is related to the possibility of transmission and/or related to an employer’s objective concern about the employee’s ability to resume working. For example, an employer may require confirmation from a medical professional addressing whether an employee may resume specific job duties requiring physical exertion. (Source: EEOC FAQ A5)
It is important to note that one of the questions not recently updated was with respect to daily COVID-19 symptom screening for employees entering the workplace. The EEOC answer remains the same, “Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19 and ask if they have been tested for COVID-19.”
The EEOC reminds employers that not all workplaces and working environments present the same risk. For example, employees working in isolated locations in an office building do not represent the same risk or threat as a restaurant server or an employee sitting amongst cubes and other workers. As a result of the new guidance, the EEOC direct threat declaration is not the universal safeguard to workplace health screenings that it once was. Moreover, when the EEOC removes the declaration that COVID-19 is a direct threat, employers must reassess their health screening protocols to be sure that they are not engaging in a prohibited medical inquiry.
Does “direct threat” apply to both candidates and current employees?
[Cherveny] Yes. Title I of the Americans with Disabilities Act of 1990 (ADA) makes it unlawful for an employer with 15 or more employees to discriminate against a qualified applicant or employee with a disability. However, applicants with disabilities must still otherwise meet the criteria for the position such as education, skills, licenses, and experience. Likewise, applicants must be able to perform the essential functions of the job with or without an accommodation.
We recently had a conversation about “long COVID”. Does “direct threat” apply to COVID-related illnesses? And if so, how?
[Cherveny] An individual who experiences more severe and/or long-lasting symptoms from COVID-19 may qualify for an accommodation under ADA. But how can an employer determine whether these symptoms interfere with an employee’s ability to perform the essential functions of the job? In other words, when does a COVID long-hauler become eligible for the rights and benefits of ADA?
To begin with, HR professionals should engage in the ADA interactive process. The interactive process is simply a cooperative and collaborative case-by-case assessment of the employee’s circumstances and ADA requirements.
The limitations from COVID-19, like other disabling conditions, do not have to last any specific length of time to be substantially limiting. If the individual experiences episodic symptoms (meaning they come and go), the individual may have an actual disability if it substantially limits a major life activity when active. For example, an individual diagnosed with COVID-19 who experiences ongoing and/or intermittent headaches, dizziness, ‘brain fog’, and/or breathing issues may be substantially limited as to major bodily functions and/or major life activities. Likewise, an employee with these symptoms may not be able to perform the essential functions of their job without an accommodation. For instance, a restaurant server who is short of breath may not be able to work lengthy shifts or carry heavy trays. However, shorter shifts and the provision of a food-runner may be an appropriate accommodation based on the employee’s facts and circumstances.
Under ADA, employers cannot consider mitigating measures when determining whether COVID-19 substantially limits a major life activity. This means that the employer must consider the symptoms without the benefit of medications or other measures to lessen their impact on the employee.
To elaborate on the COVID situation, am I correct that under “direct threat”, an employee with COVID can be barred from coming into the office – justifiably so since COVID is contagious – but an employer is not obligated to provide reasonable accommodation in the form of remote work? Does it matter if the employer is granting remote work to other employees?
[Cherveny] It is important to know that prolonged covid symptoms does not mean an individual remains contagious or an active carrier of the COVID-19 virus. The Centers for Disease Control (CDC) have developed a Quarantine and Isolation Calculator that will help employers identify if an employee must self-isolate/quarantine and when the employee may return to work (if previously required to self-isolate/quarantine).
Once the employer determines that the employee is cleared to return to work, but the employee continues to experience symptoms that interfere with their ability to perform the essential functions of the job, the employer should engage in the ADA interactive process. The employer should work with the employee in a cooperative and collaborative manner to determine if the employee is eligible for either; (1) a job accommodation under the ADA; or (2) leave (either continuous or intermittent) under the Family and Medical Leave Act (FMLA).
When considering the accommodation, the employer should consider (among other things) whether there are alternative work arrangements that have been provided to other employees – including those with and those without an ADA qualifying condition. In your example, if other employees in the same or similar position have been provided with remote work arrangements, the employer may face significant scrutiny to justify a legitimate, non-discriminatory reason for not providing a similar accommodation to an employee with a qualified disabling condition (such as long COVID).
One last question. I assume that organizations should put together some form of documentation in case they are asked about their decision making. Can you offer some suggestions?
[Cherveny] As a general rule, I’ve always recommended that employers ensure that there is a witness present during the interactive process discussions. I’ve generally recommended that one person serve as the lead in the discussion and the other should be responsible for taking copious notes about the discussion. This is really a best practice for all HR conversations with employees but especially those around regulatory requirements such as both FMLA and ADA. I also recommend that employers provide the employee with a letter of understanding regarding the accommodation being provided and the employer’s expectations of the employee such as alternate work schedules, modified duties, adjusted deadlines etc. This letter should memorialize all the agreements and arrangements as part of the workplace accommodation.
It is also a good idea to develop a policy and process for the accommodation procedure and to likewise follow that process. However, employers need to remember that each employee’s circumstances must be assessed on a case-by-case basis. Therefore, the employer’s process must ensure that the interactive process is unique for each employee.
Employers should remember that the employer may not seek medical documentation when the employee’s disability and need for accommodation are obvious. For example, if an employee who recently started using a wheelchair indicates that he needs a ramp to get into the workplace, the disability and need for accommodation are obvious.
When the need for the accommodation is not obvious, the employer will need to know the employees’ limitations and how those limitations interfere with the performance of the essential functions of the job. This is the scope of the employer’s permitted inquiry and the scope of any support documentation. Any medical questions not related to the employee’s limitations and performance of the essential functions of the job (or the elimination of a direct threat in the workplace) may become a prohibited medical inquiry under the ADA.
I want to extend a HUGE thanks to Carrie for reminding us about “direct threat” and how it relates to COVID-19. Please don’t forget that if you’re looking for a resource to help your organization maneuver through the latest stage of the pandemic, be sure to check out the HUB International COVID-19 Resource page.
While we are all hoping to put the pandemic behind us, and wishing nothing but good health to all, we can’t forget that there’s a compliance obligation in place for employers. Staying in compliance lets our employees know that we value their health and safety.20