The U.S. Equal Opportunity Commission (EEOC) recently updated its technical assistance bulletin and comprehensive COVID-19 resource, titled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (available here), calling the additions its “capstone” to the bulletin in light of the recent end to the COVID-19 public health emergency. The EEOC’s updates to the bulletin provide (among other things) additional guidance for employers with respect to complying with federal disability and anti-discrimination laws after the COVID-19 public health emergency ends, addressing issues such as the relationship between COVID-19 and the Americans with Disabilities Act (ADA), and guidance for managing employees with milder COVID-19 infections.
The guidance explains that individuals who experience continued physical impairment associated with long COVID, such as ongoing and unresolved headaches, brain fog, difficulty concentrating, shortness of breath, reduced respiratory function, heart palpitations, chest pain, vomiting, nausea, or gastrointestinal issues likely qualify as having a disability that substantially limits a major life activity. As a result, they are protected under the ADA, which requires, among other things, employers to engage in the interactive process to determine if there is a reasonable accommodation that will allow a qualified individual with a disability to perform all the essential functions of the position sought or held. The bulletin contrasts such long-term impairments with milder, short-term symptoms typical of some COVID-19 infections that resolve within several weeks, which would not qualify as a disability under the ADA. However, if mild symptoms progress to a more serious level of impairment, the condition may then be sufficiently limiting to qualify as a disability under the ADA, even if the employee’s symptoms are short in duration.
Consistent with the above, the bulletin also states that a person who experiences serious COVID symptoms, or a case of long COVID, may be “regarded as” an individual with a disability or as an individual with a record of a disability for purposes of the ADA, entitling the employee to protection from retaliation or harassment on account of the perceived or past disability.
The EEOC bulletin adds that, just like any disability for which an employee may seek a reasonable accommodation, employers may require employees to provide documentation of the employee’s disability and need for accommodation, or to allow the employer to request this information on the employee’s behalf. The EEOC further notes that “[o]ften, the only information needed will be the individual’s diagnosis and any restrictions or limitations,” which qualifies as sufficient documentation. Employers can also inquire at any time about whether an employee has tested position for COVID-19 or ask about recent travel, and may ask to take an employee’s temperature if there is a business necessity for the employer to collect that information. Employers may not ask employees about the health status (COVID-19 or otherwise) of an employee’s family members unless such information is needed for purposes of a leave request under the Family and Medical Leave Act (FMLA).
The EEOC continues to encourage employers to consult CDC guidance regarding time periods for allowing employees to quarantine and to otherwise stay current with public health information regarding emerging COVID variants.
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