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COVID-19 and the Americans with Disabilities Act Part Two:

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How can employers comply with the ADA’s requirements concerning “direct threat” while maintaining workplace safety?

The Equal Employment Opportunity Commission (EEOC) is the agency tasked with enforcing federal employment discrimination laws, commonly referred to as the Equal Employment Opportunity laws (EEO laws). One such law is the Americans with Disabilities Act (ADA). Generally speaking, the ADA prohibits discrimination on the basis of disability in employment, public accommodations, and government programs, services and activities.

The focus of this blog post is how employers can comply with the ADA’s requirements concerning an employee who is a “direct threat” in the workplace taking steps to ensure the safety of the workplace during the COVID-19 pandemic. The EEOC’s recently issued guidance in this area is summarized below. For more information, you can review the EEOC’s guidance here and here.

A. How do the ADA’s general requirements relate to preparing for and handling a pandemic?

While the ADA’s general requirements remain unchanged during the pandemic, the ADA’s protection from disability discrimination for employees and applicants intersects with an employer’s preparation for a pandemic in at least three significant ways:

  1. The ADA regulates employers’ disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities. (For more on the ADA’s requirements about disability-related inquiries and medical examinations, see Part 1 of this four-part blog series.)
  1. The ADA prohibits employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a "direct threat." This second point is the focus of this blog article.
  1. The ADA requires reasonable accommodations for individuals with disabilities, absent undue hardship for the employer, even during a pandemic. (For more on the ADA’s reasonable accommodation requirements, see Part 4 of this four-part blog series.)

B. What does an employee pose a “direct threat” in the workplace?

Under the ADA, a direct threat is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reducedby reasonable accommodation. The key to remember here is that because few, if any, activities in life are risk free,the ADA do not ask whether a risk exists, but whether it is significant.

Thus, an employer is still obligated to engage in an interactive process with the employee to determine whether a reasonable accommodation will enable the employee to perform the job’s essential functions while either eliminating the risk or reducing it to such a degree that it is not significant. However, if an individual with a disability poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA.

C. How should an employer determine whether or not a particular employee poses a direct threat in the workplace?

The determination that an individual poses a direct threat must be based on an individualized assessment of the individual's present ability to safely perform the job’s essential functions. This assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:

  1. The duration of the risk;
  1. The nature and severity of the potential harm;
  1. The likelihood that the potential harm will occur; and
  1. The imminence of the potential harm.

Employers should be very cautious when determining that an employee poses a direct threat in the workplace: the employer’s good faith belief alone, no matter how genuine, is not enough to insulate the employer from liability. Rather, the employer must reach the determination that the employee poses a direct threat to the health and/or safety of the individual employee or others in the workplace by evaluating objective evidence, whether medical or otherwise objective (i.e., the employee’s conduct). Moreover, the employer will not insulate itself from liability by solely relying on its own medical doctor’s conclusion unless the doctor has reached said conclusion by using the factors and by relying upon the most current medical knowledge and/or on the best available objective evidence.

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