On May 15, 2023, in response to the end of the COVID-19 Public Health Emergency Declaration, the EEOC updated its COVID-19 technical assistance: “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”. This guidance has now been updated roughly twenty times since the start of the pandemic. The EEOC’s recent update to its informal guidance appears to give employers permission to continue with many of their COVID-19 practices and protocols, despite the May 11, 2023 end of the Public Health Emergency.

While the EEOC reminds employers that medical exams and inquiries must be job related and consistent with business necessity, according to the EEOC: “the ‘business necessity’ standard allows for consideration of whether a person may have COVID-19, and thus might pose a ‘direct threat.’” As a result, the EEOC continues to allow employers to follow the CDC guidance but warns that “guidance from medical and public health authorities may be relevant to making certain legal determinations under one or more EEO laws (e.g., “direct threat” under the ADA). Because changes in such guidance may impact the legal assessments made under Title I of the ADA and other EEO laws … the EEOC recommends that employers … routinely check for guidance updates from CDC, FDA, and other medical and public health authorities.”  Below are some of the points raised by the EEOC in the updated guidance:

  1. “The ADA does not prevent employers from following CDC advice.” (A4)
  1. If an employee calls in sick or reports feeling sick at work, an employer may ask whether the employee has COVID-19 or common symptoms of COVID-19 as identified in CDC guidance. (A1, A12)
  1. Employers may still ask all employees entering the worksite or working in close proximity to others if they have COVID-19 or COVID-19 symptoms, if they have been COVID-19 tested and if so, the results. (A8)
  1. If an employee has COVID-19 or COVID-19 symptoms, employers may follow CDC recommended isolation guidance. (A4)
  1. Employers must maintain all information about employee illness as confidential medical records in compliance with the ADA. (A1)
  1. Measuring an employee’s body temperature or requiring an employee to undergo COVID-19 viral testing are medical examinations. Requiring medical examinations and making disability-related questions must meet the “business necessity” standard. It is important for the employer to consider why it wishes to require a medical examination. (A3, A9)
  1. The ADA doesn’t prevent employers from following CDC recommendations regarding whether, when and for whom testing or other medical screening is appropriate.  According to the EEOC, following CDC recommendations will meet the ADA “business necessity” standard. (A9)
  1. An employer may ask employees coming into the worksite whether they have had contact with “anyone” diagnosed with COVID-19 or who may have symptoms associated with the disease. But only asking about an employee’s contact with family members would create a GINA issue and would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19. (A10)
  1. Employers can ask employees about domestic or international travel as these are not disability-related inquiries, but if the employer wants to require testing of individuals who have traveled, it must meet the business necessity standard. (A14)
  1. According to the EEOC, the possible types of reasonable accommodations to address Long COVID vary, depending on a number of factors, including the nature of the symptoms, the job duties, and the design of the workplace. The EEOC provided the following examples of possible accommodations: a quiet workspace, use of noise cancelling or white noise 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. The Job Accommodation Network has information on a variety of possible accommodations. (D17)
  1. The end of the Public Health Emergency declaration does not automatically provide grounds to terminate reasonable accommodations that may continue to be needed to address ongoing circumstances (e.g. continued high risk to individuals with certain disabilities if they contract COVID-19 as discussed in CDC guidance). However, employers may engage in the interactive process to determine if, on an individualized basis, they are still necessary and whether alternative accommodations might meet those needs. (D20)
  1. The EEOC reminds employers that harassing an employee with a disability-related need to wear a mask or take other COVID-19 precautions or harassing an employee who is receiving a religious accommodation to forgo mandatory vaccination may violate Equal Employment Opportunity laws. 

What should employers do? The EEOC’s updated guidance allows, but does not require, employers to continue some of the COVID-19 protocols that were in place during the pandemic. It remains to be seen how much deference courts will give to the EEOC’s informal guidance, and as the EEOC recognizes, it is subject to change based on changing circumstances and guidance from the CDC and other public health authorities. What is certain is that COVID-19 litigation is expected to continue due to the strong and divergent views on the issues and, as a result, employers should carefully think through their practices to determine whether they still make sense for their workforce due to current circumstances.  

Employers should reach out to the Jackson Lewis attorney with whom they regularly work to discuss their current COVID-19 practices and the changes in federal and state COVID-19 law and guidance.

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Photo of Jenifer M. Bologna Jenifer M. Bologna

Jenifer Bologna is a principal in the White Plains, New York, office of Jackson Lewis P.C. She focuses much of her practice on assisting multi-state employers with compliance solutions, developing policies and practices that are lawful in all of the jurisdictions in which…

Jenifer Bologna is a principal in the White Plains, New York, office of Jackson Lewis P.C. She focuses much of her practice on assisting multi-state employers with compliance solutions, developing policies and practices that are lawful in all of the jurisdictions in which they operate.

Jenifer specializes in preventative advice and counsel on a nation-wide basis, regularly advising clients on multi-state employment law issues to address an increasingly remote and hybrid workforce. In addition, she supports employers in navigating the complex and growing body of federal, state and local leave, accommodation and benefit laws that impact an employer’s response to employees who are injured or ill, have family care responsibilities or need time to bond with children.

Jenifer’s extensive counseling experience allows her to provide nuanced advice that helps employers effectively respond to the legal and business challenges posed by the varying array of workplace employment laws. Utilizing creative legal strategies and practical advice, she guides clients through these complex issues that often demand individualized solutions.

Jenifer’s goal is to minimize her clients’ litigation risk by working with them to implement preventative strategies and constructive solutions. As such, she regularly assists employers with policy and process development or improvement, including absence management and accommodation protocols and multi-state employment policies. Understanding there is no one-size-fits-all approach, Jenifer works with clients to develop an employment law compliance strategy that best fits their specific needs.

In addition to advice and counsel, Jenifer frequently speaks on disability and absence management issues and employment law compliance, including regularly conducting workplace training on these topics.

Photo of Katharine C. Weber Katharine C. Weber

Katharine C. Weber is a principal in the Cincinnati, Ohio, office of Jackson Lewis P.C. and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group. She has successfully assisted countless clients in handling their labor and employment issues in both…

Katharine C. Weber is a principal in the Cincinnati, Ohio, office of Jackson Lewis P.C. and co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group. She has successfully assisted countless clients in handling their labor and employment issues in both Ohio and Kentucky.

Katharine has experience litigating wrongful discharge cases; managing discrimination cases; negotiating collective bargaining agreements; representing employers before the Equal Employment Opportunity Commission and other federal, Ohio and Kentucky agencies; advising management on employment relations; drafting employee handbooks; and negotiating severance agreements.

Katharine regularly advises clients on wage and hour issues. Over the past five years she has served as lead counsel on various wage and hour class and collective actions filed in both Ohio and Kentucky involving claims of misclassification, off the clock work, and other violations for which the plaintiffs claimed to be owed substantial overtime.

Additionally, Katharine is extremely knowledgeable in the area of the Americans with Disabilities Act, and the Family and Medical Leave Act, and brings sophisticated, yet easy to understand advice on handling and defending against sexual harassment claims. From helping clients analyze options and making recommendations on how to handle employee relations issues, to representing clients in complex discrimination cases, Katharine always provides creative solutions and passionate advocacy for her clients. She is also very involved in the transportation industry and has successfully litigated several cutting-edge employment law cases which have been of great benefit to transportation industry employers.

Photo of Patricia Anderson Pryor Patricia Anderson Pryor

Patricia Anderson Pryor is the office managing principal of the Cincinnati and Dayton, Ohio offices, as well as the Louisville, Kentucky, office of Jackson Lewis P.C. Patty remains purposefully poised on the precipice of the changing legal landscape, advising clients on everything from…

Patricia Anderson Pryor is the office managing principal of the Cincinnati and Dayton, Ohio offices, as well as the Louisville, Kentucky, office of Jackson Lewis P.C. Patty remains purposefully poised on the precipice of the changing legal landscape, advising clients on everything from vaccine mandates to the Dobbs response, to ESG and the attacks on DEI, to the impact of Loper Bright. The combination of Patty’s ability and tenacity to understand and apply workplace law to nuanced legal questions and specific situations results in clients perpetually asking this initial question, “What does Patty think?”

Patty is the National Head of the firm’s Emerging and Cross-Disciplinary Issues. She has over 25 years of experience representing and defending employers in nearly every form of employment litigation, including class actions. She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented employers before the EEOC, the DOL, the DOJ, OSHA, the OFCCP, and the NLRB, in addition to various state agencies.

Focusing on the best possible outcome for the client Patty takes a 360-degree view, working with employers to avoid litigation by developing effective policies and practices, including harassment policies, FMLA practices, attendance programs, affirmative action programs and wellness plans. She conducts proactive wage and hour audits, harassment investigations and compensation/pay equity reviews.

Patty is a core team member of the firm’s Disability, Leave & Health Management practice group and a leader of the Religious Accommodation Team. She provides practical advice to help companies respond to remote work challenges, paid and unpaid leave situations and the most challenging accommodation requests, all of which have been exacerbated by the pandemic, hybrid work and changes in the law.