EEOC Updates COVID-19 Guidance

With the end of the COVID-19 Public Health Emergency declaration, the EEOC updated its technical assistance questions and answers on COVID-19, the ADA, the Rehabilitation Act, and other EEO laws. As we reported in prior alerts (available here, here, here, and here), the EEOC has updated this guidance numerous times throughout the pandemic to serve as a resource for employers and workers on a wide range of COVID-19 related-issues arising under federal EEO laws in the ever-changing landscape of the pandemic. Highlights from the updated guidance are discussed below.

Disability-Related Inquiries and Medical Exams

The updated guidance frequently refers employers to the common symptoms of COVID-19 [A2], as identified by the CDC and the CDC-recommended isolation protocols [A4], and contains numerous statements that the ADA does not prevent employers from following CDC advice. Employers may wish to keep these CDC resources handy should they need to refer to them when making decisions impacting the workplace.

With regard to screening employees when entering the workplace, the updated guidance explains that employers may still ask all employees entering the workplace, or those who work in close proximity to others, if they have COVID-19, common symptoms of COVID-19, or close contact with an individual with COVID-19 or common symptoms, but reminds employers that they cannot ask whether an individual’s family members have COVID-19 or related symptoms. Employers may also continue to ask employees if they have been tested for COVID-19 and if so, the results of the test. If an employee has COVID-19 or common symptoms of COVID-19, employers should follow the CDC’s recommended isolation protocols in determining whether and for how long they may require the employee to stay home [A4]. Additionally, if an employee calls in sick, the guidance makes clear that employers may ask whether the employee has COVID-19 or common symptoms of COVID-19, as identified by the CDC.

However, employers should be mindful that certain screening methods continue to constitute medical examinations under the ADA (e.g., administering a COVID-19 test [A6, A9] and temperature checks [A3]). In such instances, employers can only implement such screening practices when they are job-related and consistent with business necessity.

Finally, the guidance explains that employers may screen applicants for employment for symptoms of COVID-19 after making a conditional job offer, as long as the employer does so for all employees in the same type of job. Additionally, if an employer screens everyone (e.g., employees, visitors, contractors) for COVID-19 before permitting entry to the workplace, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process may likewise be screened. Employers may also screen a subset of applicants pre-offer if they fall within a specific category of individuals that are subject to COVID-19 screening. For example, if a specific building requires COVID-19 screening and the applicant must enter that building, screening can be required. However, the guidance cautions that this should not be used as an opportunity, pre-offer, to ask applicants disability-related questions and/or to conduct medical examinations that otherwise may only be conducted post-offer [C1].

Reasonable Accommodations

Interestingly, the guidance provides examples of accommodations that employers may provide employees who do not get vaccinated for medical or religious reasons. Those examples include allowing unvaccinated employees entering work to wear a mask, work at a social distance from others, work a modified shift, get periodic tests for COVID-19 (provided testing is consistent with business necessity), telework, or accept a reassignment. The guidance also explains that employees who choose not to get vaccinated due to pregnancy may also be entitled to adjustments to keep working if the employer makes modifications or exceptions for other employees who require them.

If there is some sort of urgency to providing an accommodation, employers may choose to forgo or shorten the interactive process and provide a temporary accommodation. Employers may also choose to place an end date on the temporary accommodation, or provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. However, if an employee requests an extension of a temporary accommodation, the employer must consider it. In considering an extension, the employer may take into account current circumstances, including the employee’s current disability-related needs and any applicable government restrictions or public health directives [D7].

When evaluating requests for accommodations, employers can consider whether “current circumstances” related to the COVID-19 pandemic create a “significant difficulty” and therefore would constitute an undue hardship in providing certain accommodations, considering the facts of a particular job and workplace. If a particular accommodation poses an undue hardship due to circumstances related to the pandemic, employers and employees should work together to determine if there are any alternative accommodations that would not pose such problems. [D10]. Additionally, although current circumstances related to the COVID-19 pandemic may be considered when determining if a requested accommodation would pose a “significant expense” (and therefore constitute an undue hardship for the employer) the guidance notes that the “current pandemic conditions make it less likely that they would be a foundation for finding a significant expense.” 

Importantly, the updated guidance makes clear that employers may not automatically terminate reasonable accommodations that were provided due to pandemic-related circumstances as a result of the end of the COVID-19 public health emergency. However, 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. [D20]. Relatedly, the guidance reminds employers that employees with reasonable accommodations are protected from harassment and discrimination. Specifically, the guidance suggests that employers provide illustrations of pandemic-related harassment for employees to help understand what actions may violate EEO laws and provides examples of such behavior. These examples include a supervisor or coworker harassing an individual with a disability-related need to wear a mask and harassing an employee who has received an accommodation to forgo a vaccine mandate [E2].

COVID-19 and Long COVID

The updated guidance clarifies that the ADA’s definition of disability applies to COVID-19 and Long COVID in the same way it applies to any other medical condition. Under the ADA’s three-part test, someone can be an individual with a disability for ADA purposes in one of three ways. [N1] The first is when an individual has an “actual disability,” wherein the individual has a physical or mental impairment that substantially limits a major life activity. While an individual infected with COVID-19 who is asymptomatic or has mild symptoms that will resolve in a matter of weeks, with no other consequences, will not have an actual disability within the meaning of the ADA, both COVID-19 and Long COVID are physiological conditions affecting one or more body systems and as a result, they are physical and mental impairments under the ADA. [N2]. Additionally, both COVID-19 and Long COVID may affect major life activities, such as bodily functions (respiratory, lung or heart functioning) or activities (walking, concentrating, breathing). The guidance also clarifies that an impairment need only substantially limit one major bodily function or major life activity to be substantially limiting, however limitations in more than one major life activity may combine to meet the standard [N2].

Storing Medical Information

Many employers may already be aware of the ADA’s requirements to store an employee’s confidential medical information separately from the employee’s personnel file and limit access to this confidential information, so it should come as no surprise that any medical files related to COVID-19, including temperature screening results, test results, vaccination status, or employee attestations regarding COVID-19 or symptoms, should likewise be stored in the employee’s existing medical file. Other documentation that should be stored in the employee’s confidential medical file includes any written statements that an employee has COVID-19 or suspects they do, notes or other documentation from meetings with employees that contain information about symptoms, and/or any documents relating to an employee having COVID [B1].

Finally, the updated guidance includes a cautionary reminder that employers and employees should routinely check for guidance updates from the CDC, the FDA, and other medical and public health authorities relating to COVID-19. Guidance from such authorities may be relevant to making legal determinations under EEO laws and changes to guidance may impact legal assessments made under such laws. Employers should also be mindful that any changes to workplace policies or practices are implemented uniformly, and employees are treated similarly with regards to such practices, in order to avoid allegations of disparate treatment based on protected characteristics.

Please note there are updated questions and answers within the recent guidance that this alert does not discuss. Employers should consult the full guidance document or contact attorneys at the firm for a fuller discussion of these updates. As always, we will continue to monitor the legal landscape of COVID-19 in the workplace. Individuals with questions can contact Kate Townley at ktownley@fglawllc.com or any other attorney at the firm.

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