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EEOC Issues New Return to Work Guidance

On Thursday, the United States Equal Employment Opportunity Commission (EEOC) issued additional guidance for how businesses should accommodate workers with medical conditions during the pandemic.

The guidance applies when an employer knows a returning employee has an underlying medical condition that places him or her at risk, but the employee has not asked for accommodation.

The EEOC makes clear these employees cannot simply be barred from work due to their known medical condition which make people more susceptible to becoming severely ill if they become infected with the virus. Instead, "[e]mployers must do a thorough direct threat analysis, which includes an individualized assessment based on relevant factors and a determination of whether the threat can be reduced or eliminated through a reasonable accommodation."

According to EEOC technical assistance, employers must conduct an "individualized assessment" of whether a worker's disability poses a direct threat to their health, based on a reasonable medical judgment about the particular employee's disability, not the disability in general. This should include consideration of a wide range of factors, such as the severity of the potential harm to the worker, the chances that such harm will occur, the likelihood that a person will be exposed to COVID-19 at work, and the potential impact of any protective measures the employer is taking to protect the workforce.

Even if a business does conclude a worker's disability poses a direct threat to that person's health, the EEOC said the individual still can't be barred from work "unless there is no way to provide a reasonable accommodation" that does not pose an undue hardship on the employer. If such an accommodation does not exist, employers must weigh other options like telework, leave, or reassigning a worker to a different job that allows them to work in a place that is safer for them.

An employer may keep an employee away from work only after going through all these steps and reasonably concluding the employee poses a significant risk of substantial harm to themselves that cannot be reduced or eliminated by reasonable accommodation.

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