Pub. 11 2020 Issue 3

www.wvbankers.org 28 West Virginia Banker A s COVID-19 continues to spread, employers continue to grapple with navigating employment law issues related to the virus. In addition to administrating the new leave requirements imposed by the Families First Coronavirus Response Act, many employers are faced with tackling challenging employment issues under existing laws, including the Americans with Disabilities Act (ADA) and relat- ed state laws like the West Virginia Human Rights Act — both of which impose affirmative obligations on employers when it comes to the needs of employees with disabilities. Many accommodation requests have arisen based upon guidance published by the Centers for Disease Control and Prevention (CDC), declaring that individuals with certain underlying medical conditions are at increased risk for severe illness from COVID-19. According to the CDC, individuals with the following conditions are at increased risk: cancer; chronic kidney disease; chronic obstructive pulmonary disease; im- munocompromised state from solid organ transplant; obesity (i.e., BMI of 30+); serious heart conditions, such as heart failure, coronary artery disease or cardiomyopathies; sickle cell disease; and Type 2 diabetes. Additionally, people with the following conditions might be at increased risk: mod- erate-to-severe asthma; cerebrovascular disease; cystic fibrosis; hypertension; immunocompromised state from blood or bone marrow transplant, immune deficiencies, HIV, or use of corticosteroids or other immune-weakening medicines; neurologic conditions, such as dementia; liver disease; pregnancy; pulmonary fibrosis; a blood disorder called thalassemia; and Type 1 diabetes. Based on the fact that many of these health conditions are likely to constitute disabilities under the ADA, employers see an uptick in accommodation requests from employees wishing to lessen or eliminate their possible exposure to the virus. This recent trend and the new application of the ADA prompted the Equal Employment Opportunity Commission (EEOC) to issue guidance to assist employers. Fortunately, such guidance provides confirmation that many of the basic ground rules about the ADA that we already know and have applied to workplaces for years still apply, notwithstanding the fact that we are in the midst of a pandemic. First, it remains true that an employer’s accommodation obligation is triggered by an employee’s request. According- ly, employers should not assume that employees with known health conditions wish to receive an accommodation and, certainly, should not endeavor to ban employees from the workplace based merely on the fact that they have a health condition that places them at higher risk. Indeed, the EEOC’s guidance cautions that the ADA does not allow employers to automatically exclude an employee from the workplace 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 Limiting Liability: Handling Accommodation Requests Related to COVID-19 By Julie A. Moore, Bowles Rice