It Ain’t Over ‘Till It’s Over!

The Federal Government ended the COVID-19 Public Health Emergency on May 11, 2023. Many employers viewed the end of the emergency with anticipation and the hope that after three long years, they could finally return to business as usual and treat COVID issues other than periodic bouts of COVID-related illness impacting their employees as a thing of the past. Unfortunately, the oft-quoted Yogi Berra reminder that “It ain’t over ‘till it’s over” is the more accurate sentiment. As has been the case with so many COVID-related issues, any celebration by employers is premature.

On May 15, 2023, the Equal Employment Opportunity Commission (EEOC) reminded employers that the end of the Public Health Emergency does not mean all COVID-related issues are now a thing of the past. In an update to its COVID-19 technical guidance, the EEOC emphasized several ongoing obligations, the most important of which are as follows:

  • Accommodations may have to continue. Employers may not automatically terminate reasonable accommodations under the Americans with Disabilities Act (ADA) that were provided due to pandemic-related circumstances. Accordingly, employees who were given an ADA accommodation and were allowed to work from home due to individualized circumstances such as medical conditions that put them at high risk if they contract COVID cannot be automatically recalled to the workplace. Instead, the employer, in consultation with the employee, must assess whether there continues to be a need for a reasonable accommodation based on the individualized circumstances. As noted by the EEOC “Consistent with the ADA’s ‘business necessity’ standard, this evaluation may include a request for documentation that addresses why there may be an ongoing need for accommodation and whether alternative accommodations might meet those needs.” The EEOC also notes that employers may have to continue workplace-related accommodations, such as masking, social distancing, or modified shifts, for employees who have not been vaccinated due to disability, religious beliefs, practice, observance, or pregnancy.
  • Long COVID cannot be ignored. While employees may have recovered from their initial COVID infection, many are reporting long-term symptoms that the EEOC notes may still require reasonable accommodations under the ADA. The updated guidance provides some examples for consideration such as “a quiet workspace, use of noise canceling or white noise 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.” Of course, each of these accommodations is still subject to the ADA standard that it be reasonable and not cause undue hardship in the workplace.
  • Employers need to be on alert for COVID-related harassment. The EEOC notes that pandemic-related harassment runs afoul of Federal EEO laws and can create an actionable hostile work environment just as harassment based on sex, race, or other protected categories. Employers are encouraged to train supervisors and their workforce that it is inappropriate to harass an employee who has a disability-related need to wear a mask or to take other COVID precautions or who has foregone vaccines due to a religious accommodation.
  • Following CDC Guidance is still a safe haven. The EEOC continues to refer employers to guidance from the Centers for Disease Control to determine how to handle specific workplace COVID issues such as inquiries regarding COVID symptoms as identified by the CDC, testing, length of time off work following a positive test, physician clearance to return to work and other common COVID situations and indicates that following the CDC’s guidance on these issues is appropriate and will assist employers in avoiding ADA or discrimination/hostile environment based claims.

Guidance from the EEOC and CDC changes regularly making it difficult to keep up. The Employment Team at Rhoades McKee can assist employers in addressing COVID-19-related requests for accommodation under the ADA or in dealing with claims of discrimination or a hostile work environment involving COVID.

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