Employers Beware: The End of the COVID-19 Emergency Does Not Mean The End of the EEOC’s COVID-19 Guidance

By Fiona Ong - Shawe Rosental LLP

May 16, 2023

Throughout the COVID-19 pandemic, the EEOC has provided guidance to employers on how the federal anti-discrimination laws interact with COVID-19. This guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws, was revised multiple times to account for changing circumstances and, now with the declared end of the COVID-19 public health emergency, the EEOC has updated it once more. The revisions remind employers that, although the declared emergency may be over, COVID-19 still has a workplace impact that lingers on.

We note that the EEOC’s guidance is specific to the federal antidiscrimination laws that it enforces – the Americans with Disabilities Act (ADA), Title VII, the Age Discrimination in Employment Act (ADEA), and the Genetic Information Nondiscrimination Act (GINA). It does not address state laws that may also apply. It is important to remember that some states have passed laws that restrict employers from asking about or requiring COVID-19 testing and/or vaccinations, or even to wear a mask (with certain exceptions).

Among the more significant changes to the guidance are the following:

•    Asking about symptoms. In order to protect co-workers in the workplace, if an employee calls in sick or becomes ill in the workplace, employers may still ask if an employee has COVID-19 or symptoms of COVID-19. Because COVID-19 symptoms are constantly evolving with each variant, employers should look to then-current CDC guidance on symptoms. In addition, employers may ask all employees entering the workplace if they have COVID-19 or symptoms of COVID-19, as well as whether they have been tested and any result. (Subject to applicable state law).

•    Taking temperatures. Because taking temperatures is a medical examination, the ADA requires a business necessity for such an exam. So long as an elevated temperature is still a current symptom of COVID, as identified by the CDC or other public health officials, employers would be able to take employees’ temperatures to determine if they may have COVID.

•    Isolation for COVID-19. If an employee has COVID-19 or symptoms of COVID-19, the employer may require them to follow then-current CDC guidance on isolation before returning to the workplace.

•    Asking about close contacts. The EEOC clarifies that it is a violation of GINA to ask if a family member has COVID-19. Moreover, asking only about family members is too limited, since other contacts may also have COVID-19. It is permissible to ask employees whether they have had contact with anyone with COVID-19 or symptoms of COVID-19, as long as it is being done on a non-discriminatory basis.

•    Employee refusals. The EEOC asserts that for employees who refuse to respond to employer questions about whether they have COVID-19 or its symptoms, whether they have been tested and any results, or to undergo a temperature check or COVID-19 test (that meets the ADA’s business necessity standard), employers may take any appropriate action in accordance with their applicable policies and procedures. (Subject to applicable state law).

•    Temporary accommodations. If there is some urgency to providing a reasonable accommodation under the ADA to an employee with disabilities, an employer could choose to forego or shorten the required interactive process. (We interpret this to mean that the employer can choose to grant – but not deny – an accommodation without going through the whole process). Any resulting accommodation could be provided on a temporary or trial basis with an end date while awaiting medical documentation. If an employee requests an extension of a temporary accommodation, the employer must consider it, taking into account current circumstances.  
•    Advance accommodations. Employers may ask if currently-teleworking employees will need any reasonable accommodations for their disabilities, if any, in advance of returning to the workplace, and then engage in the interactive process and make necessary preparations ahead of time.

•    Accommodations for Long COVID. The EEOC reiterates that Long COVID may be a disability under the ADA, just like COVID-19, so long as it meets the statutory definition of a disability. Required accommodations under the ADA for Long COVID will vary depending on a number of factors, including the nature of the symptoms, the job duties, and the design of the workplace. The EEOC listed some common reasonable accommodations to include: a quiet workspace, use of noise cancelling or white noise devices, and uninterrupted worktime to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath. The EEOC also references the Job Accommodation Network resources on accommodations for Long COVID. The EEOC further states that employers may always choose to provide accommodations for COVID-19 and Long COVID that are not required under the ADA.

•    End of the Public Health Emergency. The end of the public health emergency does not mean that an employer can automatically terminate any pandemic-related reasonable accommodations for employees with disabilities. Employers may assess, in consultation with the employee, whether reasonable accommodations are still required based on individual circumstances. This may require medical documentation to support the continued need for accommodation.

•    Preventing harassment. While reiterating the need to prevent pandemic-related discrimination and harassment, the EEOC now provides examples, such as harassing an employee who wears a mask for a disability-related reason or one receiving a religious exemption from a vaccine mandate.

•    Reasonable accommodations for vaccine exemptions. The EEOC identifies possible accommodations for employees receiving medical or religious exemptions from vaccine mandates, as well as pregnant employees who choose not to get vaccinated if such accommodations are being provided to these others, including: masking, social distancing from coworkers or non-employees, modified shift, periodic testing as permitted by the ADA (as well as state law), telework, or reassignment.

•    Vaccine incentives. If the health care provider administering the vaccine is not the employer or its agent, the EEOC asserts that the ADA does not limit the incentives that an employer may provide to encourage or even mandate (as permitted by state law) employees and their family members to get vaccinated. If the vaccine is administered by the employer or its agent, any incentive may not be so substantial as to be coercive.

Although the declared COVID-19 emergencies may technically be over, the EEOC’s guidance makes clear that COVID-19 is still here and employers must still ensure compliance with the law. We will continue to update you on any changing guidance related to COVID-19.

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