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EEOC Releases Capstone Update to COVID-19 Technical Assistance for Employers

on Thursday, 8 June 2023 in Labor & Employment Law Update: Sarah M. Huyck, Editor

On May 15, 2023, following the expiration of the COVID-19 public health emergency, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its current technical assistance titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The EEOC’s update makes it clear the conclusion of the public health emergency does not mean the end of employer responsibilities in responding to COVID-19 in the workplace.  While the EEOC has made many additions to its technical assistance, employers should be mindful of some key updates.

First, the EEOC emphasized that employers may not automatically end reasonable accommodations they provided to employees due to pandemic-related circumstances. Instead, the EEOC encourages employers to evaluate existing COVID-related accommodations and work with their employees to determine the necessity of continuing such accommodations. The EEOC further expanded its discussion of “Long COVID.” An employee diagnosed with Long COVID, after an individualized assessment, might be considered as an individual with an “actual disability” under the Americans with Disabilities Act (“ADA”). The EEOC’s update provides examples of reasonable accommodations for employees with Long COVID, which might include: “a quiet workspace, use of noise cancelling or white noise devices, and uninterrupted worktime 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 EEOC also encouraged employers to continue looking to the Centers for Disease Control and Prevention (“CDC”) for recommendations on best workplace practices regarding COVID-19 disability-related inquiries and medical examinations. Employers who wish to keep in place health and safety protocols related to COVID-19, such as screening, must show that such protocols are a “business necessity” under the ADA. The EEOC noted that the ADA does not prevent employers from following CDC advice, and according to the EEOC, following CDC recommendations will meet this business necessity requirement.

The update confirms employers are still allowed to enforce a vaccine requirement for the workplace as long as such a requirement follows other applicable federal, state, and local laws and the employer provides reasonable accommodations for disabilities and sincerely held religious beliefs, practices, or observances. Examples of such accommodations for employees who request a vaccine exemption include mask requirements or remote and telework options.

The EEOC’s update also includes guidelines for employers concerning the prevention of COVID-related harassment of both applicants and employees. The guidelines provide examples of COVID-related harassment that might violate the ADA or Title VII of the Civil Rights Act, such as where an employee is subjected to harassment for wearing a mask for disability-related purposes or for receiving a religious accommodation to forgo mandatory vaccination.

Ultimately, the EEOC’s updated guidance encourages employers to revisit and consider policy and protocol decisions regarding COVID-19 in the workplace. Although the public health emergency may be over, employers are still allowed to maintain practices put into place during the pandemic. Employers should be cognizant of the EEOC’s updates, as well as any additional relevant state and local regulations.

Sara A. McCue
Connor J. Oldenburg, Summer Associate

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500