Following the Public Health Emergency (PHE) expiration in May 2023, the EEOC revised its guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The revisions do not identify any real surprises and advise employers on how to proceed when facing COVID-19-related issues in the workplace.

This update also confirms that the end of the PHE does not provide a basis to end reasonable accommodations needed to address continuing pandemic-related circumstances. Nonetheless, an employer may reevaluate whether there is a continued need for an accommodation granted during the pandemic by talking with the employee – going through the interactive process you are already familiar with.

Below are the highlights of what to remember when navigating through a workplace scenario involving COVID-19. The full text of the guidance can be found here (opens a new window).

Actions employers can continue to take

The guidance makes it clear that an employer may:

• Rely on the CDC for guidance specific to COVID-19.

• Screen job applicants for symptoms of COVID-19 after making a conditional job offer so long as similarly situated employees are treated the same.

• Ask an employee who calls in sick whether the employee has COVID-19 or common symptoms of COVID-19. If so, the employer may follow CDC Guidance (opens a new window) relating to isolation with respect to when an employee may return to the workplace or work in close proximity to others.

• Ask if employees have been tested for COVID-19 and, if so, ask about the result.

• Ask employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. But employers cannot ask an employee who is physically coming into the workplace whether they have a family member who has COVID-19 or associated symptoms.

• Exclude employees with COVID-19 or symptoms associated with COVID-19 from the workplace so long as consistent with CDC-recommended isolation protocols.

• Ask why the employee was absent if the employee is absent from work without identifying a reason.

• Ask an employee where they traveled to without running afoul of the ADA.

• For an employee testing positive for COVID-19 or otherwise exhibiting symptoms, an employer may choose to require a note from a qualified medical professional explaining that it is safe for the employee to return to safely return to work or the employer may follow CDC guidance to determine whether it is safe to allow an employee to return to work without confirmation from a medical professional.

• Screen employees for COVID-19. The EEOC makes it clear that an employer may ask all employees who will be physically entering the workplace (or working within close proximity with others) if they have COVID-19 or common symptoms associated with COVID-19. If an employee refuses to answer these questions, an employer may ask the employee for a reason(s) he/she is not cooperating and may take whatever action deemed appropriate, consistent with its applicable policies or procedures - including barring an employee from being physically present in the workplace or working closely with others.

• Require an employee to undergo a temperature reading or a COVID-19 viral test only if the employer can meet the ADA’s “business necessity” standard because these are medical examinations.

Reminders about key compliance concerns such as confidentiality and reasonable accommodations

The updated guidance reinforces the importance that medical information collected by an employer related to COVID-19 must be kept confidential. This information may be maintained in existing medical files – a “COVID-19 specific” medical file is not required. This “confidential” documentation includes records relating to an employee’s statement that the employee has COVID-19 and the employer’s notes relating to questions about an employee’s symptoms.

Also, the EEOC points out that there is no need for an employer to wait to explore reasonable accommodations when the request is imminent. For instance, in a remote work situation, when an employee is not expected to need accommodation until or unless remote work is no longer permitted, the employer can explore continued remote work as a reasonable accommodation with the employee before the actual return to work. Employers may also encourage employees with disabilities to request accommodations in advance. For requested accommodations that employers contend may result in an “undue hardship,” the EEOC guidance cautions employers to consider whether an alternative accommodation may exist.

Lockton comment: While employers can continue to consider whether current circumstances related to the pandemic create “significant difficulty” and a resulting undue hardship, that is generally an argument that employers do not want to make. If, after going through the interactive process, you conclude that a requested accommodation would result in an undue hardship, we recommend you consult with counsel before denying an accommodation. It is a difficult defense to establish and not a position an employer generally wants to be in absent extraordinary circumstances. The EEOC continues to conciliate and settle charges of discrimination involving allegations of failure to accommodate as well as file suits against employers for denying requested accommodations.

What if the circumstances warrant a quick turn-around and there isn’t enough time to engage in the interactive process? The EEOC advises that employers may provide a reasonable accommodation on a temporary or trial basis.

Long COVID and reasonable accommodations

Whether COVID-19 or Long COVID rise to the level of an ADA disability depends on the specific facts that employers should evaluate on a case-by-case basis – just as with any other reasonable accommodation request. The updated guidance explains that both COVID-19 and Long COVID are each a “physical or mental impairment” since they are physiological conditions affecting one or more body systems. Both conditions may affect a major life activity as well.

An impairment need only substantially limit one major bodily function or other major life activity to be “substantially limiting.” Even when symptoms are episodic, COVID-19 or Long COVID may be an actual disability if it substantially limits a major life activity when active. If an employee has limitations in more than one major life activity, the limitations may combine to meet the standard. Finally, to establish a condition is "substantially limiting", COVID-19 or Long COVID does not have to prevent or significantly restrict the performance of a major life activity.

If an employee with COVID-19 or Long COVID requests a reasonable accommodation, the employer may ask the employee to provide reasonable documentation about the disability and/or the request for a reasonable accommodation. An employer may ask the employee to obtain the requested information or request that the employee sign a limited release so the employer may contact the employee’s HCP directly. If the employee does not cooperate in providing medical information supporting the accommodation request, the employer can deny the accommodation.

What type of accommodation may be needed for Long COVID? The EEOC identifies the following as potential reasonable accommodations to address Long COVID symptoms:

• A quiet workspace, the use of noise-cancelling or white noise devices, or 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; or

• Removal of marginal functions involving physical exertion to address shortness of breath.

See also askJAN.org (opens a new window) for additional information on Long COVID and accommodations.

Employers can always choose to be more generous than what the law requires. The EEOC guidance advises that there is no issue if an employer provides accommodations requested by applicants or employees due to COVID-19 or Long COVID when the condition does not satisfy the ADA definition of disability.

Lockton comment: If an employer opts to provide an accommodation when a condition does not rise to the level of an ADA-qualifying disability, the employer needs to be sure to treat similarly situated employees the same to avoid claims of discrimination under other laws (e.g. Title VII, the Age Discrimination in Employment Act or an applicable state or local law).

Steps to take

This revised EEOC guidance provides employers with some clarity on lingering questions related to COVID-19 and reasonable accommodations. The guidance does not have the force of law, and it is yet to be seen how courts will interpret it. As a result, some undecided and uncharted territory still exists. We recommend that employers continue to reach out to counsel with questions.Download article (opens a new window)