EEOC Guidance on COVID in a Post-Emergency World

On May 11, 2023, the Biden Administration declared an end to the COVID-19 public health emergency.  Long before this declaration, the experience of living through the pandemic created a sense of fatigue and a growing temptation to ignore the existence of COVID as workplaces and other locations reopened.  Employers, however, must still be prepared to address COVID-related issues arising with their employees.  Fortunately, the U.S. Equal Employment Opportunity Commission (“EEOC”) released updated guidance to employers on May 15.  This post summarizes some of the Commission’s guidance.

For those employees receiving COVID-related accommodations, the EEOC does not recommend the automatic cessation of accommodations.  Instead, employers should dialogue with the employees and come to an agreement whether the accommodations remain necessary.  The EEOC update specifically addresses accommodations for employees with “Long Covid,” giving examples of reasonable accommodations depending upon the employee’s symptoms.  Some of these examples include a quiet workspace or use of noise cancelling devices to address brain fog, alternative lighting and reduced glare to address headaches, rest breaks to address joint pain, and a flexible schedule or telework to address fatigue.

Employers should be alert to instances of COVID-related harassment.  It is a violation of the Americans with Disabilities Act to harass an employee with a disability-related need to wear a face mask for protection.  Similarly, it is illegal to harass an employee who did not receive a COVID vaccine based on a religious exemption.  Employers should encourage employees to report any instances of COVID-related workplace harassment so that they can be addressed in a timely manner.

Helpfully, the EEOC guidance answers factually specific questions that commonly arise in the workplace.  For instance, employers are permitted to (i) ask employees who report that they are sick and unable to work whether the employee has COVID or symptoms of COVID; (ii) ask employees who physically enter the office if they have COVID; (iii) continue to screen employees for COVID when they enter the workplace.  Employers can require employees who refuse to comply with COVID screening to stay out of the workplace.  Employers may not ask an employee whether they have family members infected with COVID.

At all times, employers must protect the confidentiality of their employees by safeguarding medical records, including any COVID screening logs.

Employers are encouraged to visit and read the May 15 updated guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”