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COVID-19 Return to Work – What Can an Employer Proactively Do about the Health of a High-Risk Employee Returning to Work?

June 25, 2020  |  Barna, Guzy & Steffen, Ltd.


With the gradual return to work associated with the various Executive Orders, an issue that is popping up with increasing frequency is what may employers do when they have employees who the employer knows are at high risk. Read on for tips related to the health of a high-risk employee returning to work.

The Basics

The Centers for Disease Control and Prevention (CDC) have issued interim guidance for employers with employees at high risk.
Basically, the CDC notes that when gradually scaling up activities towards pre-COVID-19 operating practices, it is important to note that certain employees are at higher risk for severe illness from COVID-19.
These employees include individuals over age 65 and those with underlying medical conditions Such underlying conditions include, but are not limited to, chronic lung disease, moderate to severe asthma, hypertension, severe heart conditions, weakened immunity, severe obesity, diabetes, liver disease, and chronic kidney disease that requires dialysis.
 

The Self-Identification Step

The CDC says that:

  • Employees at higher risk for severe illness should be encouraged to self-identify, and employers should avoid making unnecessary medical inquiries.
  • Employers should take particular care to reduce employees’ risk of exposure to COVID-19, while making sure to be compliant with relevant Americans with Disabilities Act (ADA) and Age Discrimination in Employment Act (ADEA) regulations.
  • First and foremost, this means following CDC and the Occupational Safety and Health Administration (OSHA) guidance for reducing workplace exposure for all employees.

 

Remember, it is Self-Identification

According to the EEOC, if an employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee or take adverse action solely because the employee has a disability that the CDC identifies as potentially placing the employee at “higher risk for severe illness” if the employee gets COVID-19.
For further information on dealing with a high-risk employee who wishes to return to work, check out our blog on Covid-19 Return to Work – What Can an Employer Do When a Higher Risk Employee Wishes to Return to Work?
 

Considering Options for High Risk Workers

The CDC offers the following guidance in connection with its self-identification strategies:

  • Protect employees at higher risk for severe illness by supporting and encouraging options to telework.
  • Consider offering workers at higher risk duties that minimize their contact with customers and other employees (e.g. restocking shelves rather than working as a cashier), if agreed to by the worker.
  • Encourage any other entities sharing the same workspace also follow this guidance.
  • Provide employees from higher transmission areas (earlier step areas) telework and other options as feasible to eliminate travel to workplaces in lower transmission (later step) areas and vice versa.

As with any part of this pandemic, this interim guidance is subject to considerable change. In the event that you have a specific scenario or would like further guidance on this subject, please feel free to contact Scott.
The experienced employment law attorneys at Barna, Guzy & Steffen understand that personnel and employment issues in the workplace can be very complex and must be handled with sensitivity. Contact us for more information about how we can assist with any employment issues.