?Despite the federal government recently ending the COVID-19 public health emergency, organizations can continue implementing many pandemic-related practices.
The U.S. Equal Employment Opportunity Commission (EEOC) in May updated its COVID-19 technical guidance to advise employers to avoid automatically terminating all reasonable accommodations provided during the pandemic—although some policies can be reconsidered.
“An employer may evaluate accommodations granted during the public health emergency and, in consultation with the employee, assess whether there continues to be a need for reasonable accommodation based on individualized circumstances,” according to the guidance.
Some additional updates include:
- Companies can provide a temporary reasonable accommodation, such as a modified work schedule, for workers with COVID-19 while figuring out what kind of long-term accommodation will be needed.
- If employers require workers to be tested for COVID-19 or to have their temperatures taken, these measures must be “job-related and consistent with business necessity.”
- An organization’s pandemic-related circumstances, such as financial constraints, may be considered when determining whether a particular reasonable accommodation would be an “undue hardship,” although most accommodations are inexpensive or cost nothing. If an accommodation does pose an “undue hardship,” the employer and employee should collaborate to find alternatives.
- Pregnant workers who don’t want to be vaccinated against COVID-19 should be treated the same as those who don’t get vaccinated because of their disabilities or religious beliefs.
- Asking an employee whether their family members have COVID-19 or symptoms of COVID-19 is prohibited and would violate the Genetic Information Nondiscrimination Act.
The EEOC also makes clear that the Americans with Disabilities Act (ADA) does not prevent employers from following advice from the U.S. Centers for Disease Control and Prevention (CDC). For example, a company can still inquire into whether an employee who calls in sick has COVID-19 and can still enforce an isolation period consistent with CDC recommendations.
Dawn Solowey, an attorney at Seyfarth in Boston, noted that, under the updated guidance, employers can still ask workers physically entering the workplace—or otherwise working in close proximity with others, such as clients—if they have COVID-19 or symptoms associated with the infection, as identified by the CDC.
“Employers also may ask if these employees have been tested for COVID-19 and, if so, ask about the result,” she said.
Reasonable Accommodations for Long COVID-19
The EEOC also offered guidance for when an employee has long COVID, or long-term effects associated with the infection. Symptoms can include fatigue, intestinal pain, vomiting or nausea that lingers for several months, even if intermittently.
Long COVID is considered a disability under the ADA if it “substantially limits” a “major life activity” or “major bodily function,” such as those involving the lungs or heart, even if it lasts only a few months, per the EEOC’s guidance. However, if symptoms are cold- or flu-like and “resolve in a matter of weeks,” then long COVID is not considered a disability.
Reasonable accommodations for long COVID can include:
- A quiet workspace.
- Use of noise-canceling or white noise devices and uninterrupted work time to reduce brain fog.
- Alternative lighting and reduced glare to address headaches.
- Rest breaks to help with joint pain or shortness of breath.
- A flexible schedule or telework to mitigate fatigue.
- Removal of tasks that involve physical exertion to address shortness of breath.
Employers can request medical documentation before granting a request for reasonable accommodation for long COVID, the EEOC noted.
Beware of Harassment Related to COVID-19
The EEOC said employers should consider educating their workforce to prevent harassment of workers who:
- Continue to wear masks or take other COVID-19-related precautions.
- Have been exempted from getting vaccinated due to a religious objection.
- Are or are perceived to be of Chinese or other Asian national origin.
“The harassment or rejection of applicants or employees is unlawful unless the employee in question presents a ‘direct threat’ to co-workers that cannot be eliminated by reasonable accommodation,” said Peter Spanos, an attorney with Taylor English Duma LLP in Atlanta.
To combat this type of harassment, employers can:
- Remind employees that it is unlawful to harass or discriminate against co-workers based on factors such as race, national origin, religion and disability.
- Advise supervisors and managers of their roles in watching for, stopping and reporting any harassment or other discrimination.
- Provide illustrations of pandemic-related harassment to help the workforce understand what actions may violate the equal employment opportunity laws, such as an illustration of a supervisor harassing an employee with a disability-related need to wear a mask.
- Make clear that leadership will immediately review any allegations of harassment or discrimination and take appropriate action.
“One thing that COVID has taught us is that employers need to be nimble in the face of so many factors that are constantly evolving,” Solowey said. “This includes the virus itself, the available vaccines, the available COVID treatments, the public health situation, and the guidance and regulatory framework.”