As noted in a prior article, on July 12, 2022, the EEOC updated its COVID-19 guidance, in relation to the Americans with Disabilities Act (ADA), the Rehabilitation Act, and other equal employment opportunity laws.
One question that surfaced during the early days of the pandemic and continues to the present day: what to do about employees who have various healthcare or age-related factors which make them more susceptible to COVID-19? In the Q/A section G.6, the EEOC reaffirmed that reasonable accommodation needs to be assessed for those employees who may have conditions that make COVID-19 more dangerous for them. However, these factors standing alone do not mandate accommodation.
The guidance indicates that employers may make a general notice that as part of their standard ADA accommodation policy, they will consider requests from people with certain risk factors. Once any request for accommodation is received, employers need to begin the interactive process as required by the ADA. The same would be true for any person who requested a religious accommodation for any COVID-related item.
In section Q.4 the EEOC reiterates that the ADA “does not mandate that the employer take action . . . if the employee has not requested reasonable accommodation.” In other words, if an employee has additional risk factors, but has not requested accommodation, this is not an issue that the employer should force.
The EEOC further states that simply having a medical condition that increases the risk of severe illness from COVID does not necessarily mean that the condition qualifies as a disability (i.e., weight). In assessing individual employees, the direct threat analysis can be applied, but it is an extremely high standard that is difficult to reach and requires a highly individualized assessment of the employee, the work to be done, and other accommodation factors.
PPE Accommodations
Employees in various instances have also raised concerns that being required to mask or wear heightened PPE is somehow in violation of their rights or inappropriate as it would reveal a potential disability or violate an employee’s sincerely held religious beliefs. It should be noted that the EEOC has listed a number of potential reasonable accommodations, specifically stating that reasonable accommodation “may include additional or enhanced protective measures which include items such as gowns, masks, gloves and other gear beyond what the employer may generally provide.”
The EEOC notes that other items such as high filtration air systems could be considered a reasonable accommodation, as well as remote work. The EEOC notes that these are only ideas, and that effective accommodation “depends, among other things on an employee’s job duties and the design of the workspace.”
Age as a Risk Factor
Also updated is the Q/A in section H.1 relating to age as a risk factor for COVID illness. The EEOC notes that the Age Discrimination in the Employment Act does not have a reasonable accommodation standard, unlike the ADA’s requirement for reasonable accommodation for employees with disabilities, or religion. As such, age alone as a factor does not necessarily place a responsibility on the employer to reach an accommodation, but the EEOC does reiterate that “employers are free to provide flexibility to older workers...”
Long COVID
Also, note that due to prior changes in other agencies’ evaluations of long COVID, that condition can certainly be defined as a disability under the Americans with Disabilities Act. More information about long COVID and the 2021 Department of Justice guidance can be found in this article; but the EEOC and other agencies have been clear that simply having COVID is not necessarily a disability under the ADA, as this would always require an individualized assessment.
Big Picture
The EEO’s updated guidance information is fairly consistent with what employers have practiced throughout the pandemic. One takeaway is the importance of documenting your interactive process to show compliance.
