The COVID-19 public health emergency is over, but employers can continue implementing many pandemic-era practices, according to the US Equal Employment Opportunity Commission.
The end of the PHE is not a trigger to automatically terminate reasonable accommodations made to employees, the agency warned employers in an update to its technical assistance guidance for employers posted Monday, but it does open the door to reassessing whether such accommodations still are necessary.
The update covers the termination of pandemic-related reasonable accommodations and tips on addressing COVID-related harassment of job applicants or employees who take precautions due to a disability. The information was added to the EEOC’s technical assistance questions and answers document, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws.”
Long COVID also is addressed, including examples of potential reasonable accommodations that employees might request, such as quiet workspaces, alternative lighting, rest breaks, flexible schedules and telework.
In addition to continuing to grant reasonable accommodations, employers also can continue to ask employees who physically enter a workplace — or employees who report feeling sick — whether they have received a diagnosis or have tested positive for COVID-19. Employers also can require body temperature testing or COVID-19 viral testing — both of which are considered medical examinations. But the EEOC warns that those inquiries and tests must be job-related and consistent with “business necessity.”
The agency also recommended that employers routinely check for guidance updates from the US Centers for Disease Control and Prevention, the Food and Drug Administration and other medical and public health authorities.
It remains to be seen how courts treat the EEOC’s informal guidance, attorneys from Jackson Lewis PC noted in a JD Supra post.
“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,” they wrote.
