Employment & Labor Insider

This is not the most exciting employment law news, but the Equal Employment Opportunity Commission has issued some updates to its technical assistance on COVID-19. According to an EEOC media release, the changes were prompted by the end of the public health emergency.

You'll be happy to know that the changes are not radical.

Here are the highlights, with references to the relevant section of the technical assistance. If you are still having COVID-related issues in your workplace, you might want to read the full guidance, which is available here. The updates that the EEOC thought were particularly important are in bold below.

24 updates from the EEOC on COVID-19

• If an employee calls in sick, it's still ok to ask whether the employee has COVID or symptoms of COVID. (A.1)
• Employers should continue to rely on guidance from the Centers for Disease Control and Prevention about COVID symptoms. (A.2)
• Generally, taking an employee's temperature is a "medical examination," which means it can't be done unless "job-related and consistent with business necessity." But if CDC or other public health guidance says a fever is "a possible indication of infection," then it's all right to take the employee's temperature. (A.3)
• If CDC guidance recommends that employees with COVID or COVID symptoms stay home for a certain period of time, it's all right for the employer to require its employees to stay out of work for the recommended period. (A.4)
• It's ok for an employer to ask all employees entering the workplace whether they've been diagnosed with COVID or tested for COVID. If consistent with "CDC-recommended isolation protocols," the employer can bar employees with COVID or COVID symptoms from the workplace. (A.8)
• If the employer wants to require all employees, or particular employees, to be tested for COVID or to have their temperatures taken, these measures must be "job-related and consistent with business necessity." Again, let the CDC be your guide. (A.9)
• You can't ask an employee whether his or her family members have COVID or symptoms of COVID. That would violate the Genetic Information Nondiscrimination Act. (A.10)
• If an employee refuses to cooperate with the employer's lawful COVID-screening measures, the employer can require that employee to stay out of the workplace. But the EEOC recommends asking what the concern is. If confidentiality, then the employer may be able to get cooperation by reassuring the employee that medical information will remain confidential. If the employee needs a reasonable accommodation, the employer should discuss that with the employee and consider providing it. (A.11)
• If an employee reports feeling sick at work, it's ok to ask whether the employee has COVID or COVID symptoms and to take whatever actions are recommended by the CDC. (A.12)
• It's ok to keep an employee's COVID-related medical information in the employee's regular medical file (with non-COVID-related medical information) -- which, as I'm sure you all know, must be kept separate from the employee's personnel file. (B.1)
• It's ok to screen applicants for COVID symptoms after a conditional offer of employment has been made, but even before if the employer requires it of everybody entering the worksite. (C.1)
• It's ok to provide a temporary reasonable accommodation for COVID while figuring out what kind of long-term accommodation will be needed. (D.7)
• It's ok to invite employees to request reasonable accommodations that they may need when they return to the workplace. (D.8)
• Pandemic-related conditions (for example, supply chain issues) may be taken into account when determining whether a particular reasonable accommodation would be an "undue hardship," but if so, the employer and employee should work together to try to find alternative accommodations. (D.10, 11)
• Reasonable accommodations for long COVID might include "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." (D.19)
• The end of the public health emergency does not mean that employers can automatically quit making reasonable accommodations that may still be needed. (D.20)
• When providing harassment training, employers should consider covering harassment of employees who are still wearing masks or taking other COVID-related precautions. The training can also cover harassment of employees who have been exempted from getting vaccinated due to a religious objection. (E.2)
• Pregnant employees who don't want to be vaccinated against COVID should be treated the same as those who don't get vaccinated because of disabilities or religious beliefs. (K.2)
• Employers can still offer unlimited incentives to employees to be vaccinated against COVID, as long as the employer or its agent is not the one administering the vaccines. Vaccine information must be kept confidential. (K.16)
• Long COVID will be a "disability" within the meaning of the Americans with Disabilities Act if it "substantially limits" a "major life activity" or "major bodily function," even if it lasts only a few months. But if the symptoms are more like cold or flu symptoms and "resolve in a matter of weeks," then long COVID is not a disability. You have probably figured this out already, but determining whether a case of long COVID is a disability will require an "individualized assessment." (N.2, N.4)
• A person who has or had in the past long COVID can also have a "record of" a disability or be "regarded as" having a disability under the ADA. (N.5, N.6)
• It's ok to request medical documentation before granting a request for reasonable accommodation of long COVID. (N.11)
• An employer can voluntarily accommodate long COVID even if it isn't required to do so. Duh. (N.12)

That's it! Thanks to the EEOC for unexciting guidance. Boring is good.