When the COVID-19 pandemic began in 2020, employers found themselves in uncharted territory – a new virus, public health emergency declarations, and legislation. Against this onslaught of emerging circumstances, the Equal Employment Opportunity Commission (EEOC) published guidance on the application of existing federal equal employment opportunity laws to COVID-19 workplace issues. Since first releasing “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws” in March 2020, the agency has followed up with several revisions. The EEOC published its latest version of the guidance on May 15, 2023, just ten days after the World Health Organization declared an end to the COVID-19 global public health emergency and six days after the federal COVID-19 Public Health Emergency (PHE) technically concluded. Below, are the most significant updates in what the agency has called its “capstone” guidance (the “Revised Guidance”). 

Revised Guidance

The EEOC’s revisions focus on lawful inquiries and examinations, confidentiality requirements, and reasonable accommodations based on disability, including Long COVID, or religious beliefs. 

1. Employer Inquiries. Pursuant to the Revised Guidance, employers may continue to ask employees who enter the workplace, work closely with others, or are sick if they have COVID-19 or COVID-19-like symptoms, including whether they have tested for the virus and the results of any tests. In so doing, employers should consult updated COVID-19 guidance from the Centers for Disease Control and Prevention (CDC). Employers still may not ask employees medical questions about their family members, as doing so violates the Genetic Information Nondiscrimination Act (GINA), but they may continue to ask employees whether they have been exposed to “anyone” who has COVID-19 or COVID-19-like symptoms. In determining of which employees to make any of the above inquiries, however, employers may not rely on any protected characteristics.

2. Employee Temperature Readings. The Revised Guidance clarifies that asking an employee to undergo a temperature reading or other COVID-19 viral testing constitutes a medical examination under the Americans with Disabilities Act (ADA). As such, although the Revised Guidance does not prohibit these tests, employers looking to require an individual employee or all employees to undergo such an exam must satisfy the ADA’s “business necessity” standard (“Lawful Medical Test”). Along those lines, the EEOC advises that one way an employer may satisfy the business necessity standard is by adhering to the CDC’s recommendations on whether, when, and for whom testing is appropriate.

3. Employees Who Refuse to Cooperate With COVID-19 Inquiries and Lawful Medical Tests. If an employee refuses to answer an employer’s COVID-19 questions or undergo a Lawful Medical Test, the Revised Guidance confirms that an employer may take actions it deems appropriate, consistent with its policies or procedures, including barring the employee from the physical workplace or requiring the employee to distance from other employees.

4. Isolation. Under the Revised Guidance, employers may continue to require an employee with COVID-19 or COVID-19 symptoms to follow then-current CDC guidance on isolation before returning to the workplace, because “[t]he ADA does not prevent employers from following CDC advice.”

5. End of PHE’s Impact on Reasonable Accommodations. The Revised Guidance advises that the end of the PHE does not automatically relieve employers of their responsibility to provide pandemic-related reasonable accommodations to employees. Instead, employers may assess, together with the employee, whether reasonable accommodations remain warranted post-PHE based on the individual’s circumstances, which may require further medical documentation to support continuing the accommodation.

6. Streamlined Interactive Process and Temporary Accommodations. The Revised Guidance recognizes that changing government restrictions and current public health directives may require employers to alter their interactive processes. For example, if an employee urgently needs a reasonable accommodation, an employer may continue to lawfully forego the “interactive process” with the employee and “grant the request.” An employer that engages in this streamlined interactive process may also continue to provide the accommodation temporarily with a predetermined end date. If an employee asks the employer to extend the temporary accommodation, the Revised Guidance makes clear that the employer must consider it and, in doing so, may consider current circumstances.

7. Post-Pandemic Undue Hardship Analysis. Although the PHE has ended, an employer may still consider whether current circumstances related to COVID-19 create “significant difficulty” in acquiring or providing certain accommodations based on the facts of the job and workplace. The Revised Guidance, however, advises that current pandemic conditions “make it less likely that they would be the foundation for finding ‘significant expense,’ although an employer may consider any pandemic-related circumstances that could be relevant at the time the employer is making an undue hardship assessment.” The Revised Guidance also reminds employers that consideration of any relevant pandemic-related reason does not mean the employer may reject any accommodation that costs any money; the employer must engage in a cost-benefit analysis by weighing the accommodation cost against its budget and considering constraints the pandemic imposes. In doing so, the Revised Guidance plainly states that many no-cost or very low-cost accommodations may effectively meet the employee’s disability-related needs.

8. Long COVID Accommodations. The Revised Guidance clarifies that Long COVID (described as “new, returning or ongoing health problems present four or more weeks after being infected with the virus that causes COVID-19”), like COVID-19, may be a disability under the ADA. As such, the EEOC adds references to “Long COVID” throughout the disability discussions included in Section N and offers new guidance on accommodation obligations. The EEOC specifically identifies the following as potential reasonable accommodations for Long COVID: a quiet workspace; use of noise canceling or white noise devices; uninterrupted work time to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to manage joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removing “marginal functions” that involve physical exertion to address shortness of breath.

9. Employer Vaccine Mandates. The Revised Guidance does not change a private employer’s ability to mandate employee vaccination against COVID-19, as long as the employer provides appropriate accommodations. In determining whether an accommodation is reasonable, however, the employer must consider current pandemic-related circumstances. For example, requiring an employee who seeks an exception to the employer’s vaccine mandate based on a disability to undergo periodic viral testing for COVID-19 does not constitute a reasonable accommodation if the testing is not consistent with the ADA “business necessity” standard. While the standard for determining whether a religious accommodation request would impose an undue hardship is lower than that under the ADA, the Revised Guidance continues to note that “in many circumstances,” it may still be possible to accommodate religious beliefs. 

10. Pandemic-Related Harassment. The Revised Guidance emphasizes employers’ need to prevent unlawful discrimination and harassment related to the pandemic and provides several new examples of discrimination for employers to share with employees. Among other things, the Revised Guidance cites harassment of an employee for continuing to wear a mask due to disability-related reasons or for remaining unvaccinated due to religious beliefs.

Employer Takeaways

Given these changes to the Revised Guidance, employers should take careful note of their ongoing duties and review and update their policies and practices to ensure continued compliance with federal antidiscrimination law. For example, as employees continue to return to the workplace, employers should engage in a robust training program to ensure managers, supervisors, and human resources personnel can identify potential pandemic-related incidents of discrimination/harassment and know how to appropriately handle new and ongoing accommodation requests, including when and how to engage in the interactive process. Finally, employers should remember that the Revised Guidance only addresses federal law. Employers should consult applicable state and local laws to ensure full compliance with all appropriate requirements.