Accommodating High-Risk Employees During a Pandemic

Employers are required to reasonably accommodate employees under the Americans with Disabilities Act (ADA) and state disability laws. The ADA prohibits discrimination by an employer against any “qualified individual with a known disability” regarding job applications, hiring, advancement, termination, compensation, training, or other terms, conditions, or privileges of employment.
Employers have an obligation to consider “reasonable accommodation” through what is known as an “interactive discussion” with the employee.

These obligations have remained in effect during the COVID-19 pandemic. On April 13, 2020, Washington Governor Inslee issued a proclamation temporarily expanding accommodation for employees who are at high risk for COVID-19, which may expand the employer’s obligation under existing disability laws. The proclamation adopts the Centers for Disease and Prevention (CDC) definition for employees considered at higher risk for COVID-19, which includes the following employees:

• People over 65
• People with chronic lung disease or moderate to severe asthma
• People who have serious heart conditions
• People who are immunocompromised
• People with severe obesity
• People with diabetes
• People with chronic kidney disease undergoing dialysis
• People with liver disease

Employees that meet any of these definitions may seek accommodation from their employer. Accommodations may include alternative work assignments, telework or remote work locations – or, when an alternative work arrangement is not feasible – allow the use of paid time off or unemployment benefits. In addition, Governor Inslee’s proclamation requires employers to fully maintain employer-provided health insurance benefits during this leave of absence.

So, what should employers do now?

• In general, employers cannot identify employees or even ask employees to self-identify. Just because an employee appears to be, or is known to be, higher risk for COVID-19, as defined above, employers should not approach those employees to see if they want an accommodation or make any assumptions that the person needs an accommodation.
• If an employee requests an accommodation, the EEOC states that during a pandemic, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a disability as defined by the ADA.
• If through the interactive process, it is determined that an alternative work arrangement (including telework) is not reasonable, employers must allow the employee to take leave. This leave is unpaid unless the employee chooses to use any accrued and available paid time off or apply for unemployment benefits through a State program.
• Review health insurance contractors or check with health insurance company or benefits broker to determine whether the requirement to maintain health insurance will impact the health insurance plan.
• Employers may not permanently replace any high-risk employee who exercises their right to accommodation or leave. Note that nothing restricts employers from temporarily replacing the employee so long as it does not impact the employee’s ability to return to work when able.

There is no obligation to affirmatively provide accommodations if the employee has not specifically requested it. However, if an employee requests assistance, employers must be mindful of the requirement to consider reasonable accommodation under the ADA, state disability laws, and temporary rules such as the Governor’s proclamation above.

Archbright members are encouraged to reach out to our HR Advice and Legal team with any questions or to seek clarification.