EEOC revises COVID-19 guidance following end of public health emergency

The Public Health Emergency that was the COVID-19 pandemic came to an end on May 11, 2023. Four days later, the EEOC updated its COVID-19 Technical Assistance for about the twentieth time. The Guidance addresses federal laws administered by the EEOC — Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Genetic Information Nondiscrimination Act (GINA). No guidance is offered regarding similar state non-discrimination laws, or state laws that might restrict employers from inquiring about or requiring COVID-19 testing or vaccinations, or restricting masking requirements by employers.

The new Guidance begins with a reminder to employers that medical examinations or inquiries must be job-related and consistent with business necessity. The Guidance elaborates on the business necessity standard and posits that this standard could allow for consideration of whether a person may have COVID-19 and thus might pose a “direct threat.” The EEOC also cautions employers to regularly look for guidance updates from medical and public health authorities, as such guidelines may be relevant to making EEO-related determinations such as what constitutes a direct threat.

Other key points addressed in the latest Guidance include:

  • Employers are not prohibited from following the advice of the CDC, including CDC advice on isolating employees. Similarly, employers are still allowed to ask an employee who calls in sick if he or she has COVID-19 or COVID-19 symptoms. The EEOC notes that employers may ask these same questions of employees joining their workforce.
  • In contrast, the EEOC Guidance clarifies that asking an employee if a family member has COVID-19 is a GINA violation, and notes that asking only about family members is too limited. The Guidance explains that 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. Similarly, employers can ask employees about domestic or international travel as these are not disability-related inquiries, but if the employer wants to require testing of individuals who have traveled, it must meet the business necessity standard.
  • The Guidance reiterates that Long COVID might be an ADA-covered disability. In those cases where the definition of disability is met, reasonable accommodations for Long COVID may be required. The Guidance identifies some common accommodations, including: a quiet workspace, use of noise canceling or white noise devices, and uninterrupted work time 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 Guidance notes that the end of the Public Health Emergency declaration does not automatically provide grounds to terminate reasonable accommodations that may continue to be needed to address ongoing circumstances (e.g., continued high risk to individuals with certain disabilities if they contract COVID-19 as discussed in CDC guidance). However, employers may engage in the interactive process to determine if, on an individualized basis, accommodations are still necessary and whether alternative accommodations might meet those needs.
  • The Guidance includes a warning that employers must prevent harassment and discrimination related to the COVID-19 pandemic, and offers examples to guard against such as harassing an employee who wears a mask for a disability-related reason or one receiving a religious exemption from a vaccine mandate.

Takeaway

The end of the Public Health Emergency does not end an employer’s duty to comply with a variety of laws implicated in the pandemic. The new Guidance allows employers to continue some of the pandemic-era protocols even though they are no longer required. However, employers should carefully think through their practices to be sure they are compatible with the current conditions.