The EEOC Provides What May Be Its Final COVID Guidance Update

It ain’t over til it’s over, is it?

During the pandemic, the Equal Employment Opportunity Commission (“EEOC”) provided employers with information and guidance about keeping the workforce safe, accommodating requests for reasonable accommodations necessitated by COVID-19, vaccines, and return to work matters.

Now, almost halfway through 2023, and for the first time since July 2022, the EEOC updated its technical assistance guidance to address the end of COVID-19 as a publicly declared emergency. Exciting!

Why is this still relevant, you may ask. Well, the EEOC helpfully explains that the end of the declaration does not change the requirements of the federal EEO laws discussed in this publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

There are about 30 updates, including the following big ones:

Now that the pandemic is over, can we just terminate all of those COVID-19 related accommodations?

No. No, you can’t. That would be a bad idea.

What you can do, as an employer, is sit down with your employee and talk about current accommodations to determine if they are still effective. Remember, we call that the interactive process, which the Americans with Disabilities Act (ADA) requires an employer and an employee with a disability to engage in to consider if there are reasonable accommodations that will help the employee be able to perform the essential functions of the job. An employer may even request additional documentation as to why there would still be a need for the accommodation.

Just remember, complying with the ADA requires an individualized assessment – it is not a one-size-fits-all process.

What about Long-COVID? Is that still a thing?

You bet! As ever, whether an employee with Long COVID or COVID has a disability depends on the person’s symptoms and effects. If those symptoms substantially limit a major life activity (thinking, working, communicating), then employers will still need to treat it as a disability.

It’s the same ADA analysis that employers know and love.

If a person’s COVID symptoms do not limit a major life activity, it’s not a disability.

The EEOC provides some helpful examples:

An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA.

See N.4 of the technical assistance.

While

An individual diagnosed with “Long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA.

N.4

May we still request medical documentation if an employee requests an accommodation related to COVID or Long COVID?

Yes, like with any other possible “invisible” disability, an employer may ask the employee to provide documentation from the employee’s healthcare provider about the disability, the limitations created by the disability, and the need for accommodations.

An employer may still just continue provide accommodations as well.

Does the EEOC list examples of reasonable accommodations?

That it does. I find that coming up with “reasonable accommodations” often flummoxes employers.

Remember, a reasonable accommodation is just a change in the way duties are performed to help a disabled employee perform their job duties or enjoy the benefits and privileges of employment.

Often overlooked, JAN matches disabilities with a wide variety of accommodations based on symptoms. It is an employer’s bible of accommodations. (Employment lawyers appreciate it too!)

The EEOC’s updates include common examples of possible reasonable accommodations for employee’s with Long COVID, including a quiet workspace, use of noise cancelling devices, and uninterrupted worktime to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to help with joint pain or shortness of breath; a flexible schedule or telework for fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath.

Of course, accommodations depend on the symptoms the employee exhibits.

Employer Takeaways

Employers, take a few minutes, and check out the updated guidance. Type “5/15” into your search function, and you can see all 31 updates. While the public health emergency may be over, COVID and Long COVID can still trip up employers.