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Back to Work: Special Accommodations for People over 65 and those with Underlying Medical Conditions

The Center for Disease Control and Prevention (the “CDC”) has determined older adults and people of any age who have serious underlying medical conditions might be at a higher risk for contacting severe illness from COVID-19.  Therefore, these people are entitled to special accommodations under the Americans with Disabilities Act (the “ADA”).   

Individuals in this group include the following (especially if their conditions are not controlled):

•    People over 65 
•    People with chronic lung disease or moderate to severe asthma
•    People who have serious heart conditions
•    People who are immunocompromised 

  • Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications

•    People with severe obesity (body mass index [BMI] of 40 or higher)
•    People with diabetes
•    People with chronic kidney disease undergoing dialysis
•    People with liver disease

As such, an employee, or her doctor, has the right to inform her employer that she needs an accommodation for a medical condition that puts her at higher risk as it relates to COVID-19.  This request can be made in writing or verbally.  The employee/doctor does not need to reference the ADA or the term “reasonable accommodation.”  Finally, the underlying condition need not, and should not, be specifically referenced.  

The request should include the fact the employee has a medical condition that necessitates special treatment to meet a medical need.  As with all reasonable accommodation requests, the employer may seek medical documentation and ask questions to ascertain if a need exists, and if a reasonable accommodation can be made without “undue hardship” to the employer.

Reasonable accommodations include, having the employee work from home, relocation of the employee within the office, and providing additional personal protective equipment (PPE).  If more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration.  However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.” 29 C.F.R. pt. 1630 app. §1630.9 (1997).

What if a high risk employee does not request a reasonable accommodation, but her employer knows the employee falls into a high risk category?

In such an instance, the ADA does not require an employer to take any action.  In fact, employers are not allowed to take any adverse action (including sending the employee home) unless a reasonable accommodation was requested which cannot be granted without causing an undue hardship.  Even though the employee has a higher risk for severe illness if she contracts COVID-19 that is not sufficient for the employer to take action.  The employee must raise this issue.  

An interesting argument could be raised by an employer if it claimed these employees pose a “direct threat” to themselves by coming to work.   While the creation of a direct threat is a reason for an employer to take unilateral action, the current thinking is this doesn’t apply in this instance.   We believe the explanation for this is the fact the direct threat is not clear, since merely coming to work does not necessarily expose the employee to COVID-19.   Over the coming weeks and months, we will see if the government’s position on this issue changes.  Stay tuned!

The subject matter discussed in this post can be very technical.  It is an evolving area of law and very fact specific.  Our goal here is to simply alert you to some of the key issues involved.  We urge you to seek competent legal counsel before applying these ideas to your specific situation.  Brody and Associates stands ready to discuss your particular needs.