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While COVID-19 has become an afterthought for many of us as we move beyond the pandemic, it continues to impact the various laws governing the employment relationship. Recently the Equal Employment Opportunity Commission (EEOC) revised its guidance for employers related to COVID-19 and the federal anti-discrimination laws, including the Americans with Disabilities Act (ADA), in light of the expiration of the Public Health Emergency declaration on May 11, 2023.
As before, the EEOC continues to direct employers to follow the applicable guidance from the Centers for Disease Control and Prevention (CDC) and other health authorities. However, as the COVID-19 health recommendations are constantly evolving, employers are recommended to “routinely check” for updates because “changes in such guidance may impact the legal assessments made under Title I of the ADA and other EEO laws.”
Key updates from the EEOC’s new guidance include the following:
1. Employees Who Test Positive for COVID-19
Employers may still screen job applicants for symptoms of COVID-19 after making a conditional offer of employment as long as similarly situated employees are treated the same. For those individuals that call in sick or have common symptoms of COVID-19, employers may ask those employees whether they have tested positive for COVID-19. Further, employers may ask employees coming into the worksite whether they had contact with anyone diagnosed with COVID-19 or with symptoms thereof. Employers may also ask their employees whether they have been traveling domestically or internationally.
If the employer requires testing of individuals who have traveled, they must meet the “business necessity standard,” which requires that any disability-related inquiries or medical exams must be "job-related and consistent with business necessity." Further, measuring an employee’s body temperature or requiring an employee to undergo COVID-19 viral testing must also meet the “business necessity” standard. According to the EEOC, however, following CDC recommendations (regarding whether, when, and for whom testing or other medical screening is appropriate) will meet the ADA’s “business necessity” standard.
For those employees that do test positive for COVID-19, the EEOC takes the position that employers will not run afoul of the federal anti-discrimination laws if they follow the applicable guidance from the CDC and other relevant health authorities. However, all information about employees’ illnesses must be maintained as confidential medical records in compliance with the ADA.
2. Reasonable Accommodations for COVID-19 & “Long” COVID
Employers should continue providing reasonable accommodations to employees for COVID-19 related illnesses if such illness is a physical or mental impairment that substantially limits one or more major life activities. The EEOC takes the position that COVID-19 or “Long” COVID may qualify as an ADA-covered disability on a case-by-case basis depending on the employee’s specific situation.
Specifically regarding Long COVID, the EEOC explains that potential accommodations depend on a number of factors, such as the nature of the symptoms, the employee’s job duties, and the design of the workplace. According to the EEOC, examples of potential accommodations for those that experience Long COVID include providing the following: (i) a quiet workspace, use of noise cancelling or white noise devices, and uninterrupted worktime to address brain fog; (ii) alternative lighting and reducing glare to address headaches; (iii) rest breaks to address joint pain or shortness of breath; (iv) a flexible schedule or telework to address fatigue; and (v) removal of “marginal functions” that involve physical exertion to address shortness of breath. Employers should engage in the interactive process to determine whether accommodations are necessary for employees suffering from Long COVID.
3. Discrimination and Harassment
The EEOC guidance reminds employers that they may not harass employees with a disability-related need to wear a mask or take other COVID-19 precautions, who are exempted from mandatory vaccination due to a religious accommodation, or those that are perceived to be of Chinese or other Asian national origin.
Next Steps for Employers
Employers should review their policies and protocols regarding COVID-19 in light of the new guidance and consult counsel to ensure compliance with the ADA and other applicable laws. For more information, please see our previous Compliance Matters article regarding the updated COVID-19 regulations. We will continue to monitor major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at www.brgslaw.com.
Sincerely,
Katherine A. Hren
Charles W. Foster
Sherry N. Shayan
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