Over the past three years, employers have navigated various workplace issues impacted by the COVID-19 pandemic, including remote work, vaccination, contraction of COVID-19 in the workplace and workplace accommodations, among many others. Since March 2020, the Equal Employment Opportunity Commission (“EEOC”) has maintained and updated guidance to assist employers with this process. Last month, the federal Public Health Emergency for COVID-19 (“PHE”) – which had been in place since early 2020 – officially ended. In its most recently updated guidance, however, the EEOC made clear that while the PHE may be over, the requirements discussed in its guidance related to the pandemic still remain in effect.

Key updates from the EEOC’s latest post-pandemic guidance include information related to (1) disability accommodations that were provided during the pandemic; (2) long COVID accommodations; and (3) discrimination and harassment based on protected traits associated with the pandemic. Each of these issues is addressed below.

Disability Accommodations Provided During the PHE

The guidance first emphasizes that the end of the PHE “does not automatically provide grounds to terminate reasonable accommodations that continue to be needed to address on-going pandemic-related circumstances (e.g., continued high risk to individuals with certain disabilities if they contract COVID-19).”As a result, employers should continue providing reasonable accommodations for employees who requested or received accommodation due to pandemic-related circumstances under the Americans with Disabilities Act (the “ADA”) during the PHE. Just like with any ADA accommodation, however, employers may engage with employees to evaluate accommodations granted during the PHE and assess whether there continues to be a need for such accommodation based on individualized circumstances or if an alternative accommodation may be suitable.

Long COVID Accommodations

The updated EEOC guidance also addresses individuals with long COVID. Generally, the ADA protects employees with a physical or mental impairment constituting an “actual disability” that substantially limits one or more major life activities, as well as those who have a history or “record of” an actual disability or who may be “regarded as” disabled. According to the guidance, there is no definitive answer as to whether an individual with COVID-19 would be considered “disabled” for purposes of the ADA because of the varying impacts of COVID-19 on different individuals. Thus, an individualized, case-by-case assessment is necessary to make that determination. For instance, a person with mild symptoms, such as the “common cold or flu that resolve[s] in a matter of weeks,” would not be considered disabled under the ADA. On the other hand, individuals with severe and long-lasting COVID-19 symptoms or “long COVID”[1] may be considered an individual with a disability for purposes of the ADA and, thus, be protected and entitled to accommodation under the statute.

For employees with COVID-19 or long COVID who qualify as disabled under the ADA, the guidance also provides examples of “low-cost” accommodations that employers could consider providing to such individuals, such as: “a quiet workspace, use of noise cancelling 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.” These accommodations are merely suggestions for employers to consider throughout the interactive process in evaluating potential accommodations that meet the employee’s needs without posing an undue hardship on the employer.

Discrimination and Harassment

The last major update to the guidance recommends steps for employers to address unlawful harassment and discrimination against employees in connection with the pandemic. This would include, for example, harassment or discrimination of workers who continue to wear masks or take other COVID-19 related precautions due to a disability; those exempted from mandatory vaccination due to a religious accommodation; or individuals perceived to be of Chinese or other Asian-national origin. Specifically, the EEOC provides that employers may want to educate or remind their employees that it is against the federal EEO laws to harass or otherwise discriminate against other employees based on a protected class. In addition, it may be helpful for employers to “advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination.”

With the end of the PHE, now is a good time for employers to review their current policies and determine if any updates should be made based on changed circumstances since the pandemic. Many employers that added infectious disease policies and remote or hybrid work policies to their handbooks during the pandemic may no longer apply or be necessary. Employers are encouraged to consult counsel to ensure compliance with the ADA and other applicable laws.

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