As public health authorities begin to allow employees to return to the workplace, vulnerable people are still advised to shelter-in-place. Employers need to develop detailed plans for protecting vulnerable populations before asking them, and those who live with them, to return to work.
The Center for Disease Control has identified several groups who may be high-risk for severe illness from COVID-19. They include:
- People 65 years and older
- People who live in a nursing home or long-term care facility
- People with underlying medical conditions, especially if not well controlled, including:
- chronic lung disease or moderate to severe asthma
- serious heart conditions
- People with severe obesity
- People with diabetes
- People with chronic kidney disease undergoing dialysis
- People with liver disease
The White House has outlined a plan for Opening Up America Again. The plan envisions a three-phased approach. Vulnerable people are advised to shelter in place until the third phase. Members of households with vulnerable residents may return to work during the first phase, but if they are unable to socially distance at work, they should isolate themselves from the vulnerable. These guidelines are not law but offer suggestions for employers to follow as they open up their workplaces.
Voluntary Designation. Employers should not take it upon themselves to determine which of their employees are considered vulnerable individuals. Instead, employers should allow employees to voluntarily designate themselves as vulnerable or not. Such self-designation should not require specific information relating to the category of vulnerability, but should instead seek a yes/no answer based on the CDC’s criteria.
Reasonable Accommodation. The CDC’s criteria for who is at higher risk is composed of two main categories: age and medical conditions. The Age Discrimination in Employment Act (ADEA) does not require an accommodation based on age. However, the ADA requires employers to provide reasonable accommodation for a disability, the definition of which would likely include many, if not all, of the medical conditions listed by the CDC. In addition, while pregnancy is not considered a disability, certain pregnancy-induced health conditions may be covered under the ADA and require reasonable accommodation. Many states, including Colorado, require reasonable accommodation of all health conditions related to pregnancy.
Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs temporarily without causing undue hardship on the employer. Regardless of the likelihood of success, employers MUST engage in the interactive process with an employee requesting a reasonable accommodation.
Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit a vulnerable worker to perform the essential functions of the job safely while reducing exposure to others in the workplace or while commuting.
If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles, using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.
Vulnerable Employees Refusing to Work. The Occupational Safety and Health Act (OSHA) entitles employees to refuse work if they believe they are in imminent danger. OSHA also prohibits an employer from retaliating against an employee for a good faith refusal to work. In the COVID-19 era, most good faith refusals to work by vulnerable workers are likely to be viewed in a sympathetic light. Therefore, the best practice at this time may be liberal leave policies for vulnerable workers.
Importantly, employers should never bar vulnerable workers from the workplace just because they meet the CDC criteria. The ADEA, ADA, and Title VII prohibit discriminatory treatment based on age, disability, or gender (including pregnancy).