By Melanie M. Ghaw, Esq. and Rachel H. Khedouri, Esq.
On May 15, 2023, just six days after the expiration of the COVID-19 Public Health Emergency (“PHE”), the Equal Employment Opportunity Commission (“EEOC”) released an update to its COVID-19-related Technical Assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (the “Guidance”). Click HERE for the full text of the updated Guidance, which addresses a wide range of employment decisions that continue to be impacted by COVID-19 notwithstanding the end of the PHE, such as medical inquiries, reasonable accommodation decisions, layoffs, return to work, and vaccination requirements.
Here are the main lessons from the updated Guidance for employers to keep in mind while navigating COVID-19 issues in compliance with the federal Equal Employment Opportunity (“EEO”) laws:
EMPLOYERS MAY:
- Ask employees if they have COVID-19 or are experiencing COVID-19 symptoms AND take appropriate action for their refusal to respond.
The updated Guidance reaffirms that, as a general matter, employers may ask employees who will be physically entering the workplace (or working in close proximity with others) if they have COVID-19 or are experiencing common COVID-19-related symptoms as currently identified by the Centers for Disease Control (“CDC”). Employers may ask such employees if they have been tested for COVID-19, and if so, the results of the test. Employers may also ask employees who call in sick or report feeling ill while in the workplace whether they have COVID-19 or COVID-19-related symptoms.
Additionally, employers may ask employees if they have had contact with anyone diagnosed with COVID-19 or who may have COVID-19-related symptoms. However, employers may not inquire as to whether an employee’s family members have COVID-19 or related symptoms, as this type of inquiry would violate the Genetic Information Nondiscrimination Act. And, of course, employers may not select which employees to ask about exposure based on their protected characteristics.
If an employee refuses to answer questions about experiencing symptoms or testing, the employer may take appropriate action, including preventing the employee from entering the workplace.
- Continue temperature checks to screen for COVID-19 if consistent with business necessity.
Since measuring an employee’s body temperature is a medical examination under the ADA, an employer must show that a temperature screening is job-related and consistent with the ADA’s “business necessity” standard. According to the Guidance, the standard will be met if an elevated temperature is considered a possible indication of infection. The EEOC recommends that employers consult the CDC or other public health authorities for current guidance on whether a fever is considered an indication of COVID-19 infection.
- Require employees to stay home if they have COVID-19 or symptoms of COVID-19, as recommended by the CDC.
The Guidance makes clear that the ADA does not prevent employers from following CDC isolation protocols. Employers may follow CDC advice on when and for how long employees should remain out of the workplace, or avoid working in close proximity with others, when diagnosed with COVID-19 or experiencing COVID-19-related symptoms (available HERE).
- Screen job applicants for COVID-19, subject to certain conditions.
Generally, employers may screen job applicants for COVID-19 after making a conditional job offer, so long as all applicants within that job category are screened for COVID-19. Employers may also screen applicants before an offer is made if the applicant is entering the workplace as part of the application process and the employer screens everyone for COVID-19 before allowing them to access the worksite or if the applicant falls into a subset of individuals consistently screened by the employer.
- Continue COVID-19 vaccine mandates, subject to reasonable accommodation requirements.
The Guidance expressly provides that the EEO laws do not prevent employers from requiring all employees to be vaccinated against COVID-19 or otherwise requiring documentation or other confirmation that employees are current on their COVID-19 vaccinations. However, absent undue hardship, employers must provide reasonable accommodations for employees who opt not be vaccinated due to a disability, pregnancy, or a sincerely held religious belief, practice, or observance. Reasonable accommodations may include having the employee wear a face mask, socially distance from others at work, work a modified shift, get periodic COVID-19 tests, work remotely, or accept a reassignment.
EMPLOYERS MUST:
- Treat COVID-related medical information as confidential medical records.
Employers must maintain the confidentiality of all medical information regarding an employee, including medical information related to whether the individual has or is suspected of having COVID-19, results of daily temperature checks, any employer notes or documentation regarding an employee’s symptoms or illness, and information about an employee having Long COVID. The medical information must be kept separate from the employee’s personnel file but may be kept in the individual’s existing medical files.
- Engage in the ADA’s interactive process to assess whether pandemic-related reasonable accommodations remain warranted.
Employers may not automatically terminate accommodations put in place during the pandemic just because the PHE has ended. Rather, employers are expected to engage in the ADA’s interactive process with employees to assess whether there is an ongoing need for the same or alternate accommodations. In connection with this process, employers may consider whether certain accommodations pose significant difficulty or expense in light of circumstances related to the COVID-19 pandemic. Employers may also consider whether to forgo or shorten the interactive process and simply grant an accommodation, either ongoing or on a temporary basis with a specific end date.
The updated Guidance recognizes that there may be a particular need for accommodation for employees experiencing Long COVID – defined as “new, returning or ongoing health problems present four or more weeks after being infected with the virus that causes COVID-19” – and identifies various accommodations that may be applicable to such employees depending on the nature of their symptoms and job duties, including a quiet workspace, uninterrupted work time to address brain fog, muted lighting to address headaches, rest breaks to address joint pain, and a flexible schedule to address fatigue.
- Address and take steps to prevent pandemic-related discrimination and harassment.
The updated Guidance emphasizes the employer’s obligation to prevent unlawful pandemic-related harassment and discrimination. The EEOC suggests employers share examples of pandemic-related harassment with supervisors, managers, and employees, including harassment of an employee who chooses to continue wearing a mask or taking other COVID-19 precautions due to a disability, or harassment of an employee who remains unvaccinated due to religious beliefs.
With its updated Guidance, the EEOC reminds employers that its pandemic-related publications – including “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” published by the EEOC in response to the H1N1 outbreak and last updated in March 2020 (available HERE) – remain relevant to address ongoing questions about navigating the workplace following the end of the PHE. We advise employers to review their COVID-19-related policies to ensure continued compliance with federal, state, or local EEO laws.
If you have any questions on the EEOC’s updated Guidance or need assistance reviewing your COVID-19-related policies and procedures, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.