The EEOC Updates Its COVID-19 Technical Assistance to Address the End of the Federal Declaration of the COVID-19 Public Health Emergency

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Patricia Tsipras

May 16, 2023

Yesterday, for approximately the twentieth time since the start of the COVID-19 pandemic, the United States Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance to respond to the evolving circumstances.  Specifically, the EEOC updated its guidance entitled, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, including a section about the end of the federal declaration of the COVID-19 public health emergency.  Below are the highlights from the EEOC’s updates:

Disability-Related Inquiries and Medical Exams

• If an employee calls in sick or reports feeling ill when on the job, employers may inquire whether the employee has COVID-19 or symptoms related to COVID-19, as identified by the Centers for Disease Control and Prevention (CDC). If the employee has COVID-19 or symptoms of COVID-19, the employer may require the employee to follow the CDC’s isolation or quarantine guidelines. See A.1 and A.12.
• To obtain current information on symptoms associated with COVID-19, employers should rely on the CDC, whose information may guide employers regarding the questions they may ask employees. See A.2.
• Some employers covered by the Americans with Disabilities Act (ADA) wish to take employees’ body temperatures to screen for COVID-19. Employers should consult CDC guidance to determine if an elevated temperature is a possible indication of infection. If it is, then taking the temperature of employees will meet the “business necessity” standard of the ADA to justify such a medical examination. See A.3, A.9, and G.1.
• Some employers covered by the ADA wish to require that employees stay home if they have COVID-19 or symptoms of it. Again, employers should consult CDC guidance to determine under what circumstances and for how long it recommends isolation or quarantine. The ADA does not prevent employers from following CDC guidance. See A.4.
• Employers may ask all employees entering the workplace (1) if they have COVID-19 or symptoms associated with COVID-19; (2) if they have been tested for COVID-19 and, if so, the result of the test; and (3) to remain home if consistent with CDC isolation and quarantine guidance. See A.8.
• Employers may not ask employees if they have family members who have COVID-19 or symptoms associated with COVID-19. Such an inquiry violates the Genetic Information Nondiscrimination Act (GINA). However, GINA does not prohibit an employer from asking employees if they have had contact with “anyone” diagnosed with COVID-19 or who may have symptoms of COVID-19. See A.10.
• Employers also may ask employees about their domestic or international travel even if the employee has not developed COVID-19 symptoms. See A.14.
• If an employee refuses to answer an employer’s questions regarding COVID-19 or refuses appropriate medical examinations, an employer may take whatever action it deems appropriate, consistent with its applicable policies or procedures (e.g., barring an employee from physical presence in the workplace). See A.11.

Confidentiality of Medical Information

• Employers must keep all medical information – including information related to COVID-19 – in a file separate from the employee’s personnel file. See B.1.

Hiring and Onboarding

• Employers may screen job applicants for symptoms of COVID-19 after making a conditional offer of employment, as long as they do so for all individuals in the same type of job. See C.1.

Disability and Reasonable Accommodations

• Employers should not postpone a discussion about reasonable in-office workplace accommodations for an employee with a disability just because that employee may be working temporarily from home during the COVID-19 pandemic. See D.3.
• Employers may provide temporary accommodations – including on an interim or trial basis with an end date – if some urgency exists with an accommodation request. See D.7.
• Employers may invite employees to ask – in advance – for reasonable accommodations that they may need upon a return to the workplace. See D.8.
• An employer may consider circumstances related to the COVID-19 pandemic when determining if a requested accommodation poses “significant difficulty” or “significant expense” and, therefore, would be an undue hardship. See D.10 and D.11.
• Reasonable accommodations that may assist employees with Long COVID 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. See D.19.
• Employers may not automatically terminate reasonable accommodations that they granted during the COVID-19 pandemic just because the federal declaration of a public health emergency has ended. However, employers may evaluate such accommodations and, in consultation with the employee, assess whether a need for the accommodation still exists.  See D.20.

Pandemic-Related Harassment

• Employers should remind all employees that, at all times, including in connection with the COVID-19 pandemic, it is against federal equal employment opportunity laws to harass or otherwise discriminate against coworkers on the basis of their race, national origin, color, sex (including sexual orientation, gender identity, and pregnancy), religion, age (40 or over), disability, or genetic information. Employers should further remind employees that they will investigate allegations of harassment or discrimination and take appropriate action.  See E.2.

Vaccinations

• The following accommodations may be reasonable for an employee who does not get vaccinated due to a disability (covered by the ADA), pregnancy (covered by Title VII of the Civil Rights Act), or a sincerely held religious belief (covered by Title VII): wear a face mask, work at a social distance from others, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or accept a reassignment. See K.2.
• If the health care provider administering a COVID-19 vaccine is not the employer or its agent, the ADA does not limit the incentives that an employer may offer to encourage employees to be vaccinated. See K.16.

COVID-19 and Long COVID and the Definitions of “Disability”

• The updated guidance also discusses when COVID-19 or Long COVID is a disability under the ADA, when to request medical documentation, and reasonable accommodations related thereto. See N.1, N.2, N.4, N.5, N.6, N.11, and N.12.

As is clear from this updated guidance, though the federal declaration of the COVID-19 public health emergency has ended, employee and employer rights and responsibilities related to COVID-19 continue.  If you need help navigating the issues, call us.

This newsletter is designed to provide an overview of recent developments impacting employment law as a result of COVID-19.  It is not meant to be exhaustive.  This newsletter does not serve as legal advice, nor does it establish an attorney-client relationship with any reader of the article where one does not exist.

Always consult an attorney with specific legal issues.