The COVID-19 pandemic presented numerous challenges for employers and workplaces across the globe. While COVID is not gone, the federal government did recently end the federal public health emergency. Shortly thereafter, on May 15, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued “capstone” technical guidance that aggregates more than 20 updates the EEOC made to the guidance throughout the pandemic. The EEOC’s guidance, which has been extensively written about on this blog, covers topics ranging from new testing guidance to how COVID-19 impacted employment retaliation claims.
With some experts predicting that the world could see an Omicron-level event occurring again within the next two years, it is important for employers to study what the EEOC views as the culmination of its guidance as employers must continue to navigate the intersection between COVID-19 and health threats like it with the Americans with Disabilities Act (ADA), the Rehabilitation Act, and other EEO laws. This article does not attempt to summarize all of the voluminous capstone guidance but does address some of the more common ways the pandemic impacted the EEOC’s analysis of various employment concerns.
Ongoing Effects of COVID-19
While the public health emergency is officially at an end, the EEOC guidance counsels that employers must continue to support employees facing health issues related to or arising during the pandemic. For example, reasonable accommodations provided while the emergency was active cannot simply be terminated because the public emergency is declared over. Rather, employers have an obligation to continue engaging in the interactive process and providing reasonable accommodation because those measures were and are governed by the ADA and Rehabilitation Act, not whether a public health emergency is active.
Relatedly, many employers are likely to continue to see employees wearing personal protective equipment (PPE), such as masks. in the workplace. Importantly, some employees may be wearing PPE as a result of an ADA-covered disability. The risk of discrimination and harassment against employees wearing such PPE, which many employers had to manage during the pandemic, has not gone away, and the EEOC guidance addresses that employers must remain vigilant against discrimination or harassment on account of employees’ decision to wear or not wear PPE as appropriate for their individual circumstances.
Direct Threat Analysis
One crucial aspect addressed in the EEOC guidance is how COVID impacted the “direct threat” analysis. Under the ADA, an employer may exclude an employee from the workplace if their presence poses a direct threat to the health and safety of others. However, it is vital to conduct an individualized assessment based on current medical knowledge, the severity of an ongoing pandemic like COVID-19, and the employee’s specific circumstances. Simply assuming that an employee poses a direct threat based on generalized concerns about COVID-19 is not permissible. The updated guidance reminds employers that what global health organizations like the CDC publicly state about the status of a pandemic can be properly relevant to the legal determination that an individual employee poses a direct threat.
Preventive Measures and Reasonable Accommodations
In the guidance, the EEOC also repeatedly emphasizes ways that employers could take preventive measures to reduce the spread of COVID-19 without violating the ADA. Those measures include encouraging employees to get vaccinated, implementing physical distancing, promoting hygiene practices, and requiring the use of PPE in certain circumstances.
Furthermore, the guidance reminds employers that they must continue to provide reasonable accommodations to employees with disabilities, even if those accommodations differ from arrangements outside of the pandemic context. Employers should always engage in an interactive process to determine suitable accommodations while considering the individual’s disability-related limitations and the essential functions of their job.
Confidentiality of Medical Information
The ADA requires employers to keep employee medical information confidential. In the context of COVID-19, the EEOC clarifies through this capstone guidance that employers may request documentation or other confirmation from employees regarding their COVID-19 vaccination status. However, employers must treat this information as confidential and store it separately from the employee’s personnel file.
Hiring and Recruitment
The EEOC’s guidance also addresses concerns related to hiring and recruitment practices during a pandemic. For example, it emphasizes that employers could lawfully screen job applicants for COVID-19 symptoms as long as those screenings were consistent with medical advice and did not unlawfully discriminate against individuals with disabilities. Additionally, employers could permissibly delay the start date of an applicant who had COVID-19 or was exhibiting symptoms, as long as it did not violate the ADA’s reasonable accommodation requirements.
Furloughs, Layoffs, and Recall
Employers who faced financial hardships due to pandemic conditions were often forced to implement furloughs, layoffs, or temporary closures. The EEOC guidance clarifies that employers must be cautious to avoid discriminatory practices during these difficult times. Decisions related to furloughs or layoffs should not be based on an employee’s disability, pregnancy, age, or any other protected characteristic. Furthermore, decisions about recalling employees have to be made in a non-discriminatory manner, pandemic or not, based on neutral, non-discriminatory criteria.
The EEOC’s technical guidance on COVID-19 and the ADA/EEO laws provides employers with essential information to navigate the complex landscape of employee life cycle management during a pandemic. By keeping this guide handy, employees can be prepared for the future — when, not if, the next pandemic arises.