Written by Erica E. Flores and Kelley B. Mantz - Skoler Abbott
On May 11, 2023, the federal government declared that the COVID-19 public health emergency is over. This declaration marks the end of one of the worst global pandemics in history, and over three years of unprecedented restrictions across all facets of our lives. These restrictions forced us to completely overhaul how we handled everything from getting groceries to seeking medical care to “going” to work, and forced employers to modify their operations, implement innovative safety measures and rethink how they communicated with patrons and employees. Work-related communications about COVID-19 took center stage in this new normal, but the laws and regulations governing “disability-related” communications between employers and employees were ill-suited for pandemic conditions. So within days of the initial outbreak, the U.S Equal Employment Opportunity Commission (“EEOC”) updated guidance it had originally issued in 2009, during the H1N1 outbreak. As conditions changed and the vaccine became available, the EEOC updated this guidance several times and, on May 15, 2023, the agency issued the latest update, answering questions about the end of the COVID public health emergency.
Even though the health emergency is now over, the EEOC has made clear that its pandemic-era guidance – entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” – remains relevant for employers even in the post-COVID workplace. The following is a summary of the most notable changes for employers to be aware of.
First, the EEOC made clear that the end of the COVID-19 emergency does not change the rights and obligations provided to employers and employees by the federal equal employment opportunity laws. Employers may still ask employees who are entering the workplace whether or not they have tested positive for COVID or have any common symptoms related to COVID, and exclude those employees who report having COVID or symptoms of COVID when doing so is consistent with the protocols established by the Center for Disease Control and Prevention (CDC). Under the Americans with Disabilities Act (ADA), employers are also still permitted to make disability-related inquiries and conduct medical exams to screen employees for COVID when they are entering the workplace as long as the inquiries and exams are “job-related and consistent with business necessities.” Employers may also screen job applicants for symptoms of COVID during the hiring process, after they have made a conditional job offer, provided they do so for all other employees entering the same type of job. This applies whether or not the applicant has a disability. And, as always, employers should make sure not to treat job applicants or employees differently on the basis of any protected characteristics in decisions related to screening and exclusion from the workplace.
Importantly, the EEOC clarified that, while an employer may ask an employee who is physically coming into the workplace whether they have had contact with anyone else who was diagnosed with or having symptoms of COVID, they are not allowed to ask whether the employee has any family members who have COVID or symptoms of COVID. Asking an employee medical questions about that employee’s family members is a violation of The Genetic Information Nondiscrimination Act (GINA). So, when asking an employee about potential exposure to COVID, it is important for employers to ask generally about the employee’s potential exposure, and not ask specifically about the employee’s family members as the source of their exposure. As for how to maintain employee medical information related to COVID, the EEOC confirmed that it can be stored in the employee’s existing medical files. This includes any employee statements that they have COVID or suspect they have COVID, as well as the employer’s notes or other documentation related to the screening process.
While employers are likely eager to get employees back into the office full time, there are some relevant limitations that employers must be aware of. Employers cannot automatically terminate reasonable accommodations that were provided to an employee during the pandemic. However, they can engage in the interactive process to evaluate whether there is a continuing need for those accommodations. And even if an employer does not yet have a set plan for employees to return to the physical workplace, they can still review any existing or requested remote work accommodations to assess whether or not such accommodations are reasonable.
The EEOC’s updated guidance also addressed the ADA’s three-part definition of disability, confirming that it applies to COVID and Long COVID in the same way it applies to any other medical condition. Under the ADA, a person can be an individual with a “disability” in one of three ways: they can have an “actual” disability, they can have a “record of” having had an actual disability at one time, and they can be “regarded as” being an individual with an actual disability. This definition is intended to be broad, and thus the ADA uses a case-by-case approach to determine if an applicant or employee meets any one of the three above definitions of “disability”.
Under this framework, a person infected with COVID who is asymptomatic or has mild symptoms similar to those of the common cold or flu that resolves in a matter of weeks – with no other consequences – will not have an actual disability within the meaning of the ADA. However, COVID or Long COVID can be an actual disability if they satisfy the ADA definition, i.e. they have a physical or mental impairment that substantially limits one or more major life activities, irrespective of the benefit of any mitigating measures and even if their symptoms are episodic.
The EEOC recognizes that there will likely be an increase in accommodation requests from employees related to COVID or Long COVID disabilities. They outlined examples of reasonable low to no-cost accommodations that can be used to assist employees with Long COVID reacclimate to the office, such as a quiet workspace, use of noise cancelling devices, and uninterrupted worktime to address brain fog. Also mentioned are 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 EEOC’s updated guidance also addresses workplace harassment and discrimination related to COVID or Long COVID-related disabilities, and recommends that employers concerned about such behavior remind employees that it is against the law to harass or otherwise discriminate against coworkers based on their disabling conditions, provide examples of pandemic-related harassment to managers and supervisors to help them understand what kinds of actions may violate those laws – such as an employee harassing a co-worker based on their need to wear a mask at work, to take other COVID precautions, or to obtain an exemption from mandatory vaccination – and make clear that it will immediately review any allegations of harassment or discrimination and take prompt, appropriate action.
The lifting of the COVID-19 state of emergency is certainly an event worth celebrating, but based on the EEOC’s latest guidance, it does not relieve employers of their obligations under the ADA and other employment laws. Employers need to remain vigilant about addressing COVID-related issues in the workplace, and when in doubt, consider consulting experienced legal counsel for additional guidance.