EEOC Updates COVID-19 Guidance Post-Public Health Emergency

Author: David B. Weisenfeld, XpertHR Legal Editor

May 18, 2023

While the nation's public health emergency may be over, the Equal Employment Opportunity Commission (EEOC) is reminding employers that they remain free to continue many of their COVID-19 policies.

In updated guidance released this week, the EEOC addressed a wide range of pandemic-related issues that the agency said "remain relevant even with the end of the COVID-19 Public Health Emergency on May 11, 2023."

Perhaps most notably, the EEOC stated definitively that employers may not automatically terminate reasonable accommodations that they provided to employees due to pandemic-related circumstances.

However, consistent with the Americans with Disabilities Act's (ADA's) "business necessity" standard, an employer may evaluate accommodations granted during the public health emergency and, after consulting with the employee, assess whether a need for reasonable accommodation still exists and request documentation.

According to the EEOC, other steps an employer may still take include:

  • Asking an employee who calls out sick if they have COVID-19 or common symptoms of COVID-19;
  • Following any CDC-recommended period of isolation with respect to when an employee may return to the workplace or otherwise work in close proximity to others;
  • Taking an employee's temperature or requiring a COVID-19 viral test, as long as the medical examinations meet the ADA's business necessity standard;
  • Relying on the CDC for guidance on symptoms currently associated with COVID-19 and for choosing what questions to ask employees;
  • Screening job applicants for COVID-19 symptoms after making a conditional job offer, as long as it does so for all entering employees in the same type of job; and
  • Avoiding unlawful disparate treatment based on protected characteristics in deciding who is asked about possible exposure to persons with COVID-19.

Employers must maintain all information about employee illness, including COVID-19, as a confidential medical record in compliance with the ADA.

In addition, the EEOC's guidance notes that the ADA's definition of disability continues to apply to COVID-19 and Long COVID in the same way it applies to any other medical condition if an employee is substantially limited in one or more major life activities.