The U.S. Equal Opportunity Commission (EEOC), on May 15, 2023, updated its COVID-19 guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The EEOC called the update “the capstone to our comprehensive resource of questions and answers on COVID-19 and the anti-discrimination laws enforced by the EEOC.” The EEOC makes it clear that, although COVID-19 is no longer considered a “public health emergency,” employers may have continuing legal obligations related to COVID-19 under the Americans With Disabilities Act (ADA) and other anti-discrimination laws.
The revised guidance includes, among several other items, information about the continuation of pandemic-related reasonable accommodations, revised guidance to questions relating to long COVID-19, and advice about the continued need to remain vigilant for pandemic-related harassment and discrimination.
Continuation of Pandemic-Related Reasonable Accommodations
The guidance (at Question D.20) reminds employers that, despite the end of the federal public health emergency, employers may not automatically terminate reasonable accommodations that were granted due to pandemic-related circumstances. Rather, employers have a continuing obligation to engage in the interactive process to determine if accommodations are still necessary on an individualized basis and whether alternative accommodations might meet those needs.
The guidance (at Questions N.1 and D.19) explains that long COVID may constitute a disability under the ADA. If classified as a disability, potential reasonable accommodations for employees suffering from long COVID may include:
- “A quiet workspace, the use of noise-canceling or white noise devices, and uninterrupted work time 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.
- Removal of ‘marginal functions’ that involve physical exertion to address shortness of breath.”
The guidance (at Question B.1) also notes that, under the ADA, information about an employee having long COVID must be treated as confidential in the same manner as other employee health information.
Pandemic-Related Harassment and Discrimination
The guidance (at Question E.2) reiterates that pandemic-related harassment and discrimination on the basis of disability, religion, national origin, or any protected characteristic remains prohibited. When providing harassment prevention trainings, employers are encouraged to provide illustrations of pandemic-related harassment to help employees understand what conduct may violate anti-discrimination laws. Examples of such conduct include harassing an employee with a disability-related need to wear a mask or harassing an employee who receives a religious accommodation to forgo mandatory vaccination.
Employers with questions about COVID-19 and the ADA and EEO laws can review the EEOC’s guidance for information on the commission’s position. Employers must also remain conscious of obligations under state and local laws and should work closely with experienced counsel to ensure proper compliance.