The public health emergency is over. So why is the EEOC issuing new COVID-19 guidance to employers?

On May 11, 2023, the federal Public Health Emergency for COVID-19 ended. However, the U.S. Equal Employment Opportunity Commission (EEOC) announced yesterday that “the end of the declaration does not change the requirements of the federal equal employment opportunity laws discussed in this publication.”

So, the EEOC took the opportunity to update its COVID-19 Technical Assistance.

Per the press release, key updates include:

• The end of the COVID-19 public health emergency does not mean employers can automatically terminate reasonable accommodations that were provided due to pandemic-related circumstances. However, employers may evaluate accommodations granted during the public health emergency, and, in consultation with the employee, assess whether there continues to be a need for reasonable accommodation based on individualized circumstances.
• For employees with Long COVID, the updates include common examples of possible reasonable accommodations, including 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. Many of these are low or no-cost accommodations.
• For employers, the updates include tips about remaining alert for COVID-related harassment of applicants or employees with a disability-related need to continue wearing a face mask or take other COVID-19 precautions at work.

On the first bullet above, tread carefully and resist the urge to play doctor. It’s so easy under the ADA to have a “disability.” Instead, focus on the accommodation and individually assess what your business can do, within reason, to allow an individual with a disability to perform the job’s essential functions.

I spotted a few other items worth noting:

• The ADA does not prevent employers from following CDC recommendations and advice if employees report having COVID-19 or exposure to it. Additionally, employers may continue to ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19. But be careful about singling individuals out. Employers should not engage in unlawful disparate treatment based on protected characteristics when deciding who to screen/test, for example.
• Treat employee medical information concerning long COVID confidential, just as you would other medical information.
• Before the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components). As the pandemic wanes, the undue hardship bar continues to rise. However, an employer may consider any pandemic-related circumstances that could be relevant when the employer makes an undue hardship assessment. But, considering any relevant pandemic-related reasons does not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account any constraints created by this pandemic.

*Knock wood*

This will be the final update to the EEOC’s Technical Guidance.