On May 15, 2023 the U.S. Equal Employment Opportunity Commission (EEOC) released an update to its COVID-19 Technical Assistance guide, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (the Guide). Key updates to the Guide include:
- COVID-19 Accommodations Do Not Automatically Terminate: The end of the COVID-19 public health emergency does not mean an automatic end to reasonable accommodations provided due to pandemic-related circumstances. However, employers may evaluate accommodations granted during the public health emergency, and, in consultation with the employee (i.e., engaging in the interactive process), assess whether there continues to be a need for reasonable accommodation based on individualized circumstances.
- Examples of Long-COVID Reasonable Accommodations: The updated Guide provides examples of possible reasonable accommodations for employees suffering the effects of Long-COVID including, a quiet workspace, use of noise cancelling devices, 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 considered by the EEOC to be low or no-cost accommodations.
- Reminders Against COVID-related Harassment: The update also includes tips for employers about remaining alert for COVID-related harassment of applicants/employees with a disability-related need to continue wearing a face mask or take other COVID-19 precautions at work.
Although the COVID-19 public health emergency is over, the Guide serves as a reminder of some of the more common and on-going employer obligations when it comes to COVID-19 and its aftereffects. Employers should review these latest additions to the Guide and update internal policies/procedures and internal training accordingly. [i]
[i] Employers should keep in mind that EEOC guidance is subject to and dependent on U.S. Center for Disease Control (CDC) COVID-related guidance.