On May 15, 2023, the US Equal Employment Opportunity Commission (EEOC) issued a number of updates to its COVID-19 technical assistance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” including adding a new question and answer about the end of the federal declaration of the COVID-19 public health emergency (PHE).
According to the EEOC, the end of the COVID-19 PHE does not mean employers can automatically terminate reasonable accommodations that were provided due to pandemic-related circumstances. However, employers may evaluate accommodations granted during the public health emergency, and, in consultation with the employee, assess whether there continues to be a need for reasonable accommodation based on individualized circumstances.
For employees with Long COVID, the updates include common examples of possible reasonable accommodations, 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 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. Many of these are low or no-cost accommodations.
For employers, the updates include tips about remaining alert for COVID-related harassment of applicants or employees with a disability-related need to continue wearing a face mask or take other COVID-19 precautions at work.
The updated guidance can be accessed here.
Compliance Perspective
Issue
The EEOC’s technical assistance publication remains relevant even with the end of the COVID-19 PHE on May 11, 2023. The emergency declaration dealt with issues involving healthcare and access to treatment. The end of the declaration does not change the requirements of the federal equal employment opportunity laws discussed in the EEOC’s publication. The end of the PHE declaration does not automatically provide grounds to terminate reasonable accommodations that continue to be needed to address on-going pandemic-related circumstances (e.g., continued high risk to individuals with certain disabilities if they contract COVID-19). However, an employer may evaluate accommodations granted during the PHE and, in consultation with the employee, assess whether there continues to be a need for reasonable accommodation based on individualized circumstances. 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.
Discussion Points
- Review your policies and procedures on ADA, medical leave, providing reasonable accommodations, and the prevention of discrimination and retaliation. Ensure that your state’s laws for discrimination and retaliation are included in the policies and procedures. Update as needed.
- Train human resources staff and facility leadership on ADA requirements, including reasonable accommodations. Document that these trainings occurred and file each signed document in the employee’s individual education file.
- Periodically audit to ensure that all employees who requested medical leave were not discriminated against and that your policies and procedures for ADA were followed. Also audit to ensure that no COVID-related harassment of applicants or employees with a disability-related need to continue wearing a face mask or following other COVID-19 precautions is occurring. Ensure that all staff are aware of how to report any concerns of discrimination or retaliation.
*This news alert has been prepared by Med-Net Concepts, LLC for informational purposes only and is not intended to provide legal advice.*
