Last week, the Equal Employment Opportunity Commission (“EEOC”) released additional information for employers in dealing with the COVID-19 crisis that is sweeping the country.

EEO-1 Reporting

Due to the COVID-19 public health emergency, the EEOC announced it would delay the collection of EEO-1 Component 1 Data Collection “to a time when the agency anticipates that filers will have resumed more normal operations,” which it targeted as likely occurring in March 2021. More info here. EEO-1 filing is required annually by private employers with 100 or more employees, as well as certain federal contractors. The filing requires employers to report demographic information by race, gender, and ethnicity. When / if the filing requirement resumes in March 2021, EEOC will be collecting information for both 2019 and 2020.

Technical Assistance Q & A

The EEOC has published a Technical Assistance Q & A for employers seeking to navigate EEO laws during the COVID-19 public health emergency. In its Question G.4., the EEOC raised the following question:

The CDC identifies a number of medical conditions that might place individuals at ‘higher risk for severe illness’ if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation?

More info here. EEOC made clear that even if an employer was concerned about jeopardizing an employee’s health, it was not permitted to exclude an employee from work “solely because the employee has a disability that the CDC identifies as potentially placing him at ‘higher risk for severe illness’ if he get COVID-19.” (emphasis in original). Pursuant to the ADA, an employer could not exclude an employee “unless the employee’s disability poses a ‘direct threat’ to his health that cannot be eliminated or reduced by reasonable accommodation.” A “direct threat” is established by showing that the employee has a disability that poses a “significant risk of substantial harm” to the employee’s health. The “direct threat” analysis must be based on an “individualized assessment based on reasonable medical judgment about th[e] employee’s disability,” but not based on the disability generally. Considerations in the analysis include “the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.” Specific to COVID-19, the EEOC noted that the analysis would likely include considerations based on the pandemic’s severity in the area, the employee’s health condition, the particular job duties, and the likelihood the employee would be exposed to the virus while at work. Even if the employer does conclude that the employee’s disability poses a “direct threat,” it cannot exclude the employee unless a reasonable accommodation cannot be provided.

Finally, the EEOC noted that if the employee did not request a reasonable accommodation, the ADA does not require that the employer take any action.

This guidance is particularly relevant to employers that believe exposure to COVID-19 may impact the health of an employee who the employer knows has a disability that could place him / her at greater risk for health complications. However, even if an employer is acting in what it believes is the employee’s best interest, the ADA requires that consideration be given to whether the exposure or potential exposure would be a “direct threat” prior to excluding the employee from the workplace.

If employers have questions on whether an employee’s disability may pose a direct threat to his / her safety, please contact the employment law professionals at the Dickinson Law Firm.