Employment Law Report
The EEOC’s “Capstone” COVID-19 Guidance Addresses Workplace Discrimination in the Post-Pandemic Era
By: Tyson C. Gorman with assistance from Mick Smith, Wyatt Summer Associate
Just four days after the official conclusion of the federal COVID-19 public health emergency (“PHE”) declaration, the Equal Employment Opportunity Commission (“EEOC” or “Agency”) published a revision of its COVID-19 guidance for pandemic-related workplace discrimination matters (“the Revised Guidance”). In what EEOC chair Charlotte A. Burrows calls the “capstone” to the Agency’s COVID-19 resources, the Revised Guidance consolidates over 20 updates the Agency has published since March of 2020 and offers valuable insight on COVID-19’s lasting impact on the Americans with Disabilities Act (“the ADA”), the Rehabilitation Act, and other equal employment opportunity laws, including the following:
- Individuals who suffer from “Long COVID” may qualify for protection under the ADA as individuals with a disability. In addition to COVID-19 itself, Long COVID (defined as new, returning, or ongoing health problems that remain present four or more weeks after contracting COVID-19) may qualify as a disability under the ADA if the condition causes a severe mental or physical impairment that “substantially limits one or more major life activities” such as walking or talking. An individual who has a “history of, or has been misclassified as having” either COVID-19 or Long COVID, or has been subjected to adverse action (e.g., being fired, not hired, or harassed) as a result of suffering from Long COVID may also qualify as an individual with a disability under the ADA. The EEOC maintains that the determination as to whether an individual who has been diagnosed with COVID-19 or is suffering from Long COVID is to be considered as having a disability pursuant to the ADA on a case-by-case-basis.
- The end of the PHE does not automatically relieve employers of their responsibility to provide reasonable, pandemic-related accommodations to employees. Employees with certain disabilities that the U.S Centers for Disease Control and Prevention (“CDC”) categorizes as “high risk,” such as cancer, chronic kidney disease, and diabetes, may still be eligible for reasonable accommodations due to pandemic-related circumstances pursuant to the ADA. The Revised Guidance states that employers may “evaluate accommodations granted during the PHE and, in consultation with the employee, assess whether reasonable accommodations remain warranted based on individualized circumstances.” An accommodation is reasonable if it effectively reduces or eliminates risks to the employee while not imposing “undue hardship” (described as a significant burden that is extensive, substantial, disruptive, or fundamentally alters the nature or operation of the business) on the employer. The Revised Guidance lists several reasonable accommodations for employees, such as a quiet workspace, use of noise-cancelling headphones, and pre-set hours of uninterrupted work time.
- Employers may continue to implement select COVID-19 screening procedures to ensure workplace safety. Employers may still ask employees who physically enter the workplace or work closely with others whether they have tested positive for COVID-19 or are experiencing COVID-19-like symptoms. Employers remain prohibited from inquiring about employees’ family members, as such actions would violate the Genetic Information Nondiscrimination Act (“GINA”). Additionally, employers may not base such inquiries on protected characteristics.
- Employers remain obligated to address cases of pandemic-related harassment or discrimination. Examples include an employer harassing an employee who chooses to wear a mask, practices social distancing, or has received an accommodation to forgo mandatory vaccination. Employers may still require employees to isolate if they have been diagnosed with COVID-19 or are experiencing COVID-19-like symptoms, so long as such precautions are consistent with then-current CDC guidance.
Although COVID-19 no longer qualifies as a PHE, employers are still bound by several pandemic-related obligations. The Revised Guidance from the EEOC provides clarity to employers and employees alike regarding the long-term impact of COVID-19 on various federal anti-discrimination laws.
