The Centers for Disease Control and Prevention (CDC) recently published guidance entitled “People Who Are at Higher Risk for Severe Illness,” which lists factors that make certain categories of people more likely to get severely ill if they contract COVID-19. Those people considered high risk by the CDC are:
- people aged 65 years and older;
- people who live in a nursing home or long-term care facility;
- people with chronic lung disease or moderate to severe asthma;
- people who have serious heart conditions;
- people who are 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 over 40);
- people with diabetes;
- people with chronic kidney disease undergoing dialysis; and
- people with liver disease.
You might notice something all of these categories of people have in common (other than being high-risk): they all implicate legally protected classes under federal and state anti-discrimination laws, including the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA).
We at Employers Council have had many conversations with members in which a member, wanting to protect its employees, has asked us if they can keep older or disabled employees away from work for those employees’ protection. Although it may make sense from a logical perspective that the best way to protect an employee who falls into a high-risk category would be to keep them out of the workplace, employers should not take the CDC’s guidance as a suggestion, or permission, to do that.
Legal prohibitions on treating employees in legally protected classes differently from other employees still apply (subject to very limited exceptions) even when the employer is trying to protect its employees.
Therefore, employers must tread carefully to avoid inviting unlawful discrimination claims.
Instead of forcing employees in high-risk categories to stay away from the worksite, our advice is to communicate with all employees about what the employer is doing to ensure everyone’s safety and to let all employees know that if anyone has any questions or concerns, they should bring them to HR. That way, employers will not be treating employees in protected categories differently than others. Then, if an employee does raise a safety concern about reporting to the worksite, HR should have a discussion with that employee and engage in an interactive process to discuss potential options and, when the concern is related to a disability (or pregnancy), possible reasonable accommodations.
Employers Council has been diligently working to help employers through these trying times and will continue to do so. If you have questions about how to protect your employees while navigating confusing employment laws, we are here to help.