Updated guidance published by the Equal Employment Opportunity Commission (“EEOC”) warns employers that the end of the COVID-19 health care emergency did not automatically end employers’ responsibilities to provide accommodations granted during the COVID-19 health care emergency, to consider new requests for accommodation from applicants or employees claiming disability from COVID-19 or other pandemic related conditions, or to comply with the medical confidentiality, interference and retaliation rules of the Americans with Disabilities Act.
EEOC Update COVID-19 Guidance For End Of Emergency
On May 15, 2023, the EEOC updated its publication on “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (the “Guidance”) to add supplement its prior guidance about the effect of the ADA and other federal discrimination laws during the COVID-19 health care emergency (the “Emergency”) to include guidance on the effect of the end of the federal declaration of the COVID-19 public health emergency that happened on May 11, 2023.
Since its original publication, the Guidance has made clear that the Americans with Disabilities Act (ADA) and the Rehabilitation Act workplace disability nondiscrimination, reasonable accommodation, and employer medical examinations and inquiries); Title VII of the Civil Rights Act prohibitions against race, color, national origin, religion, and sex, including pregnancy; Age Discrimination in Employment Act prohibitions against individuals age 40 or older; and the Genetic Information Nondiscrimination Act rules (collectively, the “EEO Laws”) remain in effect during the Emergency. The Guidance also addressed a wide range of issues about how these EEO Laws applied during the Emergency and to COVID-19, including disability-related inquiries and medical examinations, how the definition of disability may apply to COVID-19 and Long COVID, confidentiality, reasonable accommodation based on disability, harassment, and vaccinations (including reasonable accommodation based on disability or religious beliefs). The May 15, 2023 updates to the Guidance address the implications of the May 11, 2023 end of the Emergency on these obligations as well as updates previously shared guidance on employer COVID-19 screening, testing, vaccination and other practices following the end of the Emergency.
Among other things, the Guidance confirms an employer must maintain and keep all information about a COVID-19 or any other illness or other medical information about an applicant or employee confidential and in a separate file in accordance with the ADA medical confidentiality rules. The Guidance also confirms despite the end of the Emergency that an employer:
- Should consult and follow current Centers for Disease Control (“CDC”) guidance about when and how long a worker with COVID-19 or COVID-19 symptoms should stay home or may safely return to the workplace;
- May exclude employees with COVID-19 or COVID-19 symptoms associated with the workplace when consistent with CDC-recommended isolation protocols.
- May ask all employees who will be physically entering the workplace or otherwise working in close proximity with others if they have COVID-19 or common symptoms associated with COVID-19 as identified by CDC and if they have been tested for COVID-19 and if so, ask about the result;
- May not ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or COVID-19 symptoms;
- May only require employees to submit to having their temperature taken, COVID-19 testing or other medical screening when the employer can demonstrate that the testing meets the ADA “business necessity” standard or otherwise follows current CDC recommendations;
- May ask an employee calling in sick, reporting illness while at work, or returning from travel whether the employee has COVID-19 or common symptoms of COVID-19 as identified by the CDC and if the employee responds affirmatively, the employer may follow any CDC-recommended period of isolation with respect to when an employee may return to the workplace or otherwise work in close proximity to others. The Guidance also addresses what other information an employer may ask an employee calling in sick, reporting illness while in the workplace, or returning following a period of absence due to COVID-19 infection.
The Guidance also makes clear the EEOC interprets the ADA as requiring covered employers to continue to comply with the ADA and the Rehabilitation Act requirements for evaluating and granting requests for accommodation received from applicants or employees during and after the end of the Emergency including requests by applicants or employees that may qualify as disabled due to long-COVID and other pandemic-related conditions. The Guidance makes clear that this generally means that a covered employer must evaluate accommodations granted during the Emergency or requested post-Emergency to assess whether an employee or applicant is disabled within the meaning of the ADA and if so, if there exists a need to provide reasonable accommodation based on individualized circumstances.
Regarding accommodation requests for employees qualifying as disabled from long-COVID, the Guidance shares common examples of possible reasonable accommodations, including a quiet workspace, use of noise canceling 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; and removal of “marginal functions” that involve physical exertion to address shortness of breath.
The updated Guidance also warns employers of their continued responsibility to remain alert for and prevent COVID-related harassment of applicants or employees with a disability-related need to continue wearing a face mask or take other COVID-19 precautions at work as well as to prevent retaliation in the workplace against employees or applicants in violation of the ADA or other EEO Laws.
In all cases, the updated Guidance also alerts employers that changed risks, CDC guidance and other circumstances following the end of the Emergency may eliminate or undermine an employer’s ability to justify the denial of COVID-19 related accommodations as consistent with current CDC guidelines or as a business necessity.
Employers Face Heightened COVID-19 Related Disability Risks
EEOC complaint and enforcement data as well as private litigation trends signal the advisability for covered employers to prepare to defend against ADA and Rehabilitation Act disability or other EEO Law discrimination, accommodation, leave and retaliation complaints. Between April 2020 and December 2021, for instance, the EEOC reports receiving roughly 6,225 COVID-related discrimination charges. The EEOC already has launched a plethora of lawsuits and other enforcement actions in response to many of these complaints. See, e.g. EEOC Sues Total Systems Services for Disability Discrimination and Retaliation (March 29, 2023); EEOC Sues United Labor Agency for Disability Discrimination (February 15, 2023). The EEOC’s inclusion of ’employment discrimination associated with the COVID-19 pandemic and other threats to public health’ as among its priorities in its EEOC Draft Strategic Enforcement Plan published in January, 2023 reflects it plans to continue this heightened enforcement activity in the 2023 fiscal year paying particular attention to “discriminatory practices associated with the COVID-19 pandemic and other threats to public health,” such as:
- pandemic-related harassment based on race, national origin, religion, disability, age, gender, or other protected characteristics;
- unlawful denials of accommodations to individuals with disabilities or individuals with sincerely held religious beliefs, practices, or observances;
- unlawful medical inquiries, improper direct threat determinations, or other discrimination related to disabilities that arose during or were exacerbated by the pandemic;
- discrimination against persons who have an actual disability or are regarded as having a disability related to COVID-19, including individuals with long COVID, and pandemic-related caregiver discrimination based on a protected characteristic.”
In light of the aggressive EEOC complaint and enforcement record, all employers covered by the ADA, the Rehabilitation Act or other EEO Laws should be concerned about their likely elevated exposure to COVID-19 associated disability or other related EEO Law charges and lawsuits. should review and update their existing workplace practices, policies, accommodation practices and decisions, and related communications to verify their defensibility in light of the end of the Emergency. When conducting this review, most employers also should reassess the continued appropriateness of prior or current accommodation decisions in light of changed CDC guidance and other circumstances that may impact on the business’s ability to justify these decisions in light of changed circumstances. Because of the likely sensitivity of discussions and analysis arising in connection with these assessments, employers may wish to seek the advice of qualified legal counsel regarding these evaluations as well as opportunities to structure them to safeguard potentially sensitive discussions within the protection of attorney-client privilege.
We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
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About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pregnancy, disability and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day to day operations, through times of change and in response to complaints, investigations and enforcement.
Author of a multitude of other highly regarded publications and presentations on MHPAEA and other and health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.
A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community and government leaders on health, severance, disability, pension and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration and defense of their organization’s workforce, employee benefit and compensation, safety, discipline and other management practices and actions.
Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
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