ASSOCIATIONINSIGHT
Portable Sanitation Association International News
BIWEEKLY EDITION JUNE 24, 2020
Page 22
What You Should Know about COVID-19, ADA, and EEO Laws…continued from page 21
However, where an employee with a disability needs a related reasonable accommodation under the ADA
(e.g., non-latex gloves, a religious accommodation under Title VII (such as modified equipment due to
religious garb), the employer should discuss the request and provide the modification or an alternative if
feasible and not an undue hardship on the operation of the employer's business.
3. What does an employee need to do to request reasonable accommodation from their employer because
they have one of the medical conditions that CDC says may put them at higher risk for severe illness
from COVID-19?
An employee—or a third party, such as an employee's
doctor—must let the employer know that the employee
needs a change for a reason related to a medical condition
(here, an underlying condition). Individuals may request
accommodation in conversation or in writing.
The employee or her representative should communicate
that she has a medical condition that necessitates a change
to meet a medical need. After receiving a request, the
employer may ask questions or seek medical documentation
to help decide if the individual has a disability and if there is
a reasonable accommodation that can be provided.
4. We have an employee with a medical condition that places him at higher risk if he gets COVID-19. He has
not brought it up or requested accommodation. What are our obligations in this situation?
First, if the employee does not request a
reasonable accommodation, the ADA does not
mandate that the employer take action.
If the 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 any other adverse action—solely because
the employee has a disability that the CDC
identifies as potentially placing him at "higher
risk for severe illness" if he gets COVID-19.
Under the ADA, such action is not allowed
unless the employee's disability poses a "direct
threat" to his health that cannot be eliminated or
reduced by reasonable accommodation.
The ADA direct threat requirement is a high standard. As an affirmative defense, direct threat requires an
employer to show that the individual has a disability which poses a "significant risk of substantial harm"
to his own health under 29 C.F.R. section 1630.2(r). A direct threat assessment cannot be based solely on
the condition being on the CDC's list; the determination must be an individualized assessment based on a
reasonable medical judgment about this employee's disability—not the disability in general—using the most
current medical knowledge and/or on the best available objective evidence.
The ADA regulation requires an employer to consider 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.
Continued on page 23
