The EEOC's Finale of COVID Guidance

Yesterday, the EEOC released what is likely to be its last technical guidance on COVID-19.  In it, it addresses how employers may address continuing accommodations granted during the pandemic, how to accommodate employees and applicants with long-COVID and avoiding harassment of employees with long-COVID or need to continue wearing face-masks. For instance, following CDC standards constitutes a business necessity when it comes to medical inquiries and medical examinations.  Many of the revisions merely state recommendations or options instead of requirements.  To save you from having to read though the scores of unchanged FAQ, the revisions if the updated guidance are included below: 

A.1. If an employee calls in sick, how much information may an employer request from the employee in order to protect the rest of its workforce and others (e.g., customers) from infection with COVID-19? (Updated 5/15/23)

If an employee calls in sick, an employer may ask whether the employee has COVID-19 or common symptoms of COVID-19 as identified by CDC. If the employee has COVID-19 or symptoms of the disease, the employer may follow 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.  See A.4., which also addresses following a CDC-recommended period of isolation.  Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

A.2. Where can employers obtain current information on symptoms associated with COVID-19? (Updated 5/15/23)

The list of symptoms commonly associated with the disease may change as public health authorities and doctors learn more and as different variants emerge . Employers should rely on CDC for guidance on symptoms currently associated with the disease. These sources may guide employers when choosing questions to ask employees. See also A.8., addressing the ability of an employer to ask employees if they have been diagnosed with or tested for COVID-19.

A.3. When may an ADA-covered employer take the body temperature of employees in an effort to screen for COVID-19? (Updated 5/15/23)

Measuring an employee's body temperature is a medical examination. See A.6. for a discussion of the type of assessment an employer must do to justify requiring a medical examination (or requiring employees to answer disability-related questions) under the ADA’s “business necessity” standard.  Employers may wish to consult CDC guidance or guidance from other public health authorities to determine if an elevated temperature is a possible indication of infection.  If it is, then taking the temperature of employees will meet the ADA standard. 

A.4. Does the ADA allow employers to require employees to stay home if they have COVID-19 or symptoms of COVID-19? (Updated 5/15/23)

Employers should consult current CDC guidance to clarify when and for how long it recommends someone with COVID-19, or symptoms of COVID-19 should stay home.  The ADA does not prevent employers from following CDC advice.  See also A.1., which addresses the information an employer may request when an employee calls in sick.

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A.8. May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (Updated 5/15/23)

Yes. Employers may ask all employees who will be physically entering the workplace (or otherwise working in close proximity with others, such as clients) if they have COVID-19 or common symptoms associated with COVID-19 as identified by CDC.   Employers also may ask if these employees have been tested for COVID-19 (and if so, ask about the result).   An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace if consistent with CDC-recommended isolation protocols.   See also A.2.

A.9. May a manager require that a particular employee have a temperature reading or undergo COVID-19 viral testing, as opposed to imposing these medical examinations on all employees? (Updated 5/15/23)

Whether an employer wishes  to require a particular employee, or all employees, to have a temperature reading or to undergo COVID-19 viral testing, the ADA requires that the employer meet the “business necessity” standard because these are medical examinations. Therefore, it is important for the employer to consider why it wishes to require a medical examination. The ADA does not prevent employers from following recommendations by CDC regarding whether, when, and for whom testing (or other medical screening) is appropriate, because following CDC recommendations will meet the ADA “business necessity” standard.  For a discussion of screening testing for employees generally, see A.6.  For a discussion of taking temperature as a screening mechanism, see A.3.  Employers should not engage in unlawful disparate treatment based on protected characteristics in deciding who is subject to medical examinations.

A.10. May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (Updated 5/15/23)

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. For example, GINA prohibits employers from asking employees to provide their family members’ medical examination results, including COVID-19 test results. GINA, however, does not prohibit an employer from asking employees whether they have had contact with “anyone” diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking about an employee’s contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.  Employers should not engage in unlawful disparate treatment based on protected characteristics in deciding who is asked about possible exposure to persons with COVID-19.

A.11. What may an employer do under the ADA if an employee refuses to permit the employer to take the employee’s temperature or refuses to answer questions about whether the employee has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19? (Updated 5/15/23)

An employer may ask employees if they have COVID-19, common symptoms of COVID-19 as identified by CDC, or have been tested for COVID-19 (and if so, ask about the result).  See A.1. and A.8.  An employer also may take an employee’s temperature or require a COVID-19 viral test as long as these medical examinations meet the ADA’s “business necessity” standard.  See A.3., A.6., and A.9.  If an employee refuses to cooperate by answering these questions or taking these medical examinations, an employer may take whatever action it deems appropriate, consistent with its applicable policies or procedures (e.g., barring an employee from physical presence in the workplace or otherwise working closely with others).

To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. For example, the employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The employer may reassure the employee that the ADA prohibits disclosure of employee medical information with limited exceptions. Alternatively, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed; this is discussed in Question G.7.

A.12. May an employer request information from an employee who reports feeling ill while on the job with symptoms associated with COVID-19, in order to protect the rest of its workforce and others (e.g., customers) with COVID-19? (Updated 5/15/23)

Yes.  If an employee who works on-site (or otherwise works in close proximity to others),  reports feeling ill while on the job, an employer may ask whether the employee has COVID-19 or  common symptoms of COVID-19 as identified by CDC.  If the employee has COVID-19 or symptoms of the disease, the employer may follow 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. See A.4., which also addresses following a CDC-recommended period of isolation. Employers must maintain all information about an employee’s illness as a confidential medical record in compliance with the ADA.

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A.14. When an employee returns from travel during the COVID-19 pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled? (Updated 5/15/23)

No. Questions about where a person traveled would not be disability-related inquiries. Employers may wish to consult current CDC guidance regarding domestic or international travel for recommendations on what precautions, if any, are advisable after returning from certain destinations.  If an employer wishes to require a medical examination (e.g., requiring a COVID-19 viral test), it must meet the ADA’s “business necessity” standard.  See A.6. and A.9.

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B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee's temperature or the employee's self-identification as having this disease, or must the employer create a new medical file system solely for this information? (Updated 5/15/23)

The ADA requires that all medical information about a particular employee be stored separately from the employee's personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee's statement that the employee has the disease or suspects so, or the employer's notes or other documentation from questioning an employee about symptoms. Similarly, information about an employee having Long COVID must also be treated as confidential. For information on confidentiality and COVID-19 vaccinations, see K.4.

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C.1. If an employer is hiring, may it screen applicants for symptoms of COVID-19? (Updated 5/15/23)

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.  This ADA rule applies whether or not the applicant has a disability.  

In addition, if an employer screens everyone for COVID-19 (i.e., screens all applicants, employees, contractors, and visitors because anyone potentially might have COVID-19) before permitting entry to the worksite, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19.  It is also permissible to screen a subset of applicants pre-offer if they fall into a specific category of individuals (including employees and others) that are subject to COVID-19 screening.  For example, if everyone entering a particular building on campus must undergo COVID-19 screening, an employer also may subject an applicant entering this building to the same screening, even though such screening is not routinely done when entering other buildings.  But note, an employer should not use this COVID-19 screening as an opportunity, pre-offer, to also ask applicants disability-related questions and/or to conduct medical examinations that may only be done post-offer. For information on the ADA rules governing such inquiries and examination, see Section A.

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D.7. If there is some urgency to providing an accommodation, may an employer provide a temporary accommodation? (Updated 5/15/23)

Yes. Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the "interactive process" (discussed in D.5 and D.6., above) and grant the request. In addition, changes in government restrictions may affect the need for accommodations. Changes in how an employer conducts the interactive process may be necessary to suit changing circumstances based on current public health directives.

Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the temporary accommodation (for example, a specific date such as “May 30”). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a disability that puts the employee at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

If an employee requests an extension of a temporary accommodation, the employer must consider it. The employer may take into account current circumstances, including the employee’s current disability-related needs and any applicable  government restrictions or public health directives).

D.8. May an employer invite employees to ask for reasonable accommodations they may need in the future in advance of a return to the workplace? (Updated 5/15/23)

Yes. Employers may inform the entire workforce that employees with disabilities may request accommodations in advance that they believe they may need when returning to the workplace either part-time or full-time. This is discussed in greater detail in Question G.6. If advance requests are received, employers may begin the "interactive process"—the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.

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D.10. May an employer consider circumstances related to the COVID-19 pandemic when determining if a requested accommodation poses "significant difficulty" (and therefore would be an undue hardship)? (Updated 5/15/23)

An employer may consider whether current circumstances related to the COVID-19 pandemic create "significant difficulty" in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship due to circumstances related to the pandemic, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

D.11. May an employer consider circumstances related to the COVID-19 pandemic when  determining if a requested accommodation poses "significant expense" (and therefore would be an undue hardship)? (Updated 5/15/23)

Prior to 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). Current pandemic conditions make it less likely that they would be the foundation for finding  “significant expense,” although an employer may consider any pandemic-related circumstances that could be relevant at the time the employer is making an undue hardship assessment.  But, consideration of 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. Even under pandemic-related circumstances, there may be many no-cost or very low-cost accommodations that effectively meet the employee’s disability-related needs.

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D.19.  What are examples of reasonable accommodations that may assist employees with Long COVID? (5/15/23)

The possible types of reasonable accommodations to address various symptoms of Long COVID vary, depending on a number of factors, including the nature of the symptoms, the job duties, and the design of the workplace.  Some common reasonable accommodations include: a quiet workspace, use of noise cancelling or white noise 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.  The Job Accommodation Network has information on a variety of possible reasonable accommodations to address specific symptoms of Long COVID. 

D.20.  As a result of the end of the COVID-19 Public Health Emergency on May 11, 2023, may employers automatically terminate reasonable accommodations that were provided due to pandemic-related circumstances? (5/15/23)

No.  This emergency declaration dealt with issues involving health care coverage and access to treatment.  It did not address the ADA and Rehabilitation Act requirements regarding provision of reasonable accommodation.  Therefore, the end of this Public Health Emergency declaration 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).  However, an employer 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.  Consistent with the ADA’s “business necessity” standard, this evaluation may include a request for documentation that addresses why there may be an ongoing need for accommodation and whether alternative accommodations might meet those needs.    

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E.2. Are there steps an employer should take to address possible harassment and discrimination against employees in connection with the pandemic? (Updated 5/15/23)

Yes. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex (including sexual orientation, gender identity, and pregnancy), religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may want to provide illustrations of pandemic-related harassment for supervisors, managers, and all other employees to help them understand what actions may violate the EEO laws. For example, one illustration might show a supervisor or coworker violating the ADA/Rehabilitation Act by harassing an employee with a disability-related need to wear a mask or take other COVID-19 precautions. Another illustration might show a supervisor or coworker violating Title VII by harassing an employee who is receiving a religious accommodation to forgo mandatory vaccination. (See E.3. for an additional example of pandemic-related harassment.) Finally, an employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

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G.1. As government restrictions are imposed, lifted, or modified during the course of the pandemic, how will employers know what steps they can take consistent with the ADA to screen employees for the virus that causes COVID-19 when entering the workplace?  (Updated 5/15/23)

The ADA permits employers to make disability-related inquiries and conduct medical exams to screen employees for COVID-19 when entering the workplace if such screening is “job-related and consistent with business necessity.”  For more information on disability-related inquiries and medical examinations, see Section A.  For information on reasonable accommodation requests related to screening protocols, see G.7.

Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

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K.2. What are some examples of reasonable accommodations or modifications that employers may have to provide to employees who do not get vaccinated due to disability; religious beliefs, practices, or observance; or pregnancy?  (Updated 5/15/23)

An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.  For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19 (provided testing is consistent with the ADA “business necessity” standard for medical examinations; see A.6.), be given the opportunity to telework, or finally, accept a reassignment. 

Employees who choose not to be vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees.  These modifications may be the same as the accommodations made for an employee based on disability or religion.

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K.16. Does the ADA limit the value of the incentive employers may offer to employees for receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)? (Updated 5/15/23)

No.  If the health care provider administering a COVID-19 vaccine is not the employer or its agent the ADA does not limit the incentives (which includes both rewards and penalties) an employer may offer to encourage employees to receive a COVID-19 vaccination, or to provide confirmation of vaccination. This is because the ADA’s rules about when disability-related inquiries may be asked and medical examinations required only apply when it is the employer or its agent asking the questions or requiring the medical exam.  See K.9.  By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive.  See K.17.  Even if an employer requires employees to receive vaccination or provide confirmation of vaccination, as long as it is not required to be administered by the employer or its agent, the ADA does not limit the value of incentives offered, whether rewards or penalties. 

As noted in K 4., the employer is required to keep vaccination information confidential under the ADA.

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N.1. How does the ADA define disability, and how does the definition apply to COVID-19 and Long COVID? (Updated 5/15/23)

The ADA’s three-part definition of disability applies to COVID-19 and Long COVID in the same way it applies to any other medical condition. A person can be an individual with a “disability” for purposes of the ADA in one of three ways:

“Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function);

“Record of” a Disability: The person has a history or “record of” an actual disability (such as cancer that is in remission); or

“Regarded as” an Individual with a Disability: The person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.

The definition of disability is construed broadly in favor of expansive coverage, to the maximum extent permitted by the law. Nonetheless, not every impairment will constitute a disability under the ADA. The ADA uses a case-by-case approach to determine if an applicant or employee meets any one of the three above definitions of “disability.”

COVID-19, Long COVID, and the ADA

“Actual” Disability

N.2. When is COVID-19 or Long COVID an actual disability under the ADA? (Updated 5/15/23)

Applying the ADA rules stated in N.1. and depending on the specific facts involved in an individual employee’s condition, a person with COVID-19 or Long COVID has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 or Long COVID substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances.

A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA. However, depending on the specific facts involved in a particular employee’s medical condition, an individual with COVID-19 might have an actual disability, as illustrated below.

Physical or Mental Impairment: Under the ADA, a physical impairment includes any physiological disorder or condition affecting one or more body systems. A mental impairment includes any mental or psychological disorder. COVID-19 and Long COVID are physiological conditions affecting one or more body systems. As a result, they are each a “physical or mental impairment” under the ADA.

Major Life Activities: “Major life activities” include both major bodily functions, such as respiratory, lung, or heart function, and major activities in which someone engages, such as walking or concentrating. COVID-19 or Long COVID may affect major bodily functions, such as functions of the immune system, special sense organs (such as for smell and taste), digestive, neurological, brain, respiratory, circulatory, or cardiovascular functions, or the operation of an individual organ. In some instances, COVID-19 or Long COVID also may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others. An impairment need only substantially limit one major bodily function or other major life activity to be substantially limiting. However, limitations in more than one major life activity may combine to meet the standard.

Substantially Limiting: “Substantially limits” is construed broadly and should not demand extensive analysis. COVID-19 or Long COVID need not prevent, or significantly or severely restrict, a person from performing a major life activity to be considered substantially limiting under Title I of the ADA.

The limitations from COVID-19 or Long COVID do not necessarily have to last any particular length of time to be substantially limiting. They also need not be long-term. For example, in discussing a hypothetical physical impairment resulting in a 20-pound lifting restriction that lasts or is expected to last several months, the EEOC has said that such an impairment is substantially limiting. App. to 29 C.F.R. § 1630.2(j)(1)(ix). By contrast, “[i]mpairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.” Id.

Mitigating Measures: Whether COVID-19 or Long COVID substantially limit a major life activity is determined based on how limited the individual would have been without the benefit of any mitigating measures—i.e., any medical treatment received or other step used to lessen or prevent symptoms or other negative effects of an impairment. At the same time, in determining whether COVID-19 or Long COVID substantially limits a major life activity, any negative side effects of a mitigating measure are taken into account.

Some examples of mitigating measures for COVID-19 include medication or medical devices or treatments, such as antiviral drugs, supplemental oxygen, inhaled steroids and other asthma-related medicines, breathing exercises and respiratory therapy, physical or occupational therapy, or other steps to address complications of COVID-19.  Examples of mitigating measures for Long COVID include medication or treatment, respiratory therapy, physical therapy, and mental health therapy.

Episodic Conditions: Even if the symptoms related to COVID-19 or Long COVID come and go, COVID-19 or Long COVID is an actual disability if it substantially limits a major life activity when active.

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N.4. What are some examples of ways in which an individual with COVID-19 might or might not be substantially limited in a major life activity? How can Long COVID substantially limit a major life activity? (Updated 5/15/23)

As noted above, while COVID-19 may substantially limit a major life activity in some circumstances, someone infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to the common cold or flu that resolve in a matter of weeks—with no other consequences—will not be substantially limited in a major life activity for purposes of the ADA. Based on an individualized assessment in each instance, examples of fact patterns include:

Examples of Individuals with an Impairment that Substantially Limits a Major Life Activity:

An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.

An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.

An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.

An individual diagnosed with “Long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA.

Examples of Individuals with an Impairment that Does Not Substantially Limit a Major Life Activity:

An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.

An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.

As noted above, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when active, based on an individualized assessment.

For information on possible services and supports for individuals with Long COVID, see the report issued by the U.S. Dept. of Health and Human Services.

“Record of” Disability

N.5. Can a person who has or had COVID-19 or Long COVID be an individual with a “record of” a disability? (Updated 5/15/23)

Yes, depending on the facts. A person who has or had COVID-19 or Long COVID can be an individual with a “record of” a disability if the person has “a history of, or has been misclassified as having,” 29 C.F.R. § 1630.2(k)(2)   an impairment that substantially limits one or more major life activities, based on an individualized assessment.

“Regarded As” Disability

N.6. Can a person be “regarded as” an individual with a disability if the person has COVID-19 or Long COVID, or the person’s employer mistakenly believes the person has COVID-19 or Long COVID? (Updated 5/15/23)

Yes, depending on the facts. A person is “regarded as” an individual with a disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19 or Long COVID, or the employer mistakenly believes the person has such an impairment, unless the actual or perceived impairment is objectively both transitory (lasting or expected to last six months or less) and minor. For this definition of disability, whether the actual or perceived impairment substantially limits or is perceived to substantially limit a major life activity is irrelevant.

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N.11. When an employee requests a reasonable accommodation related to COVID-19 or Long COVID under the ADA, may the employer request supporting medical documentation before granting the request? (Updated 5/15/23)

Yes. As with employment accommodation requests under the ADA for any other potential disability, when the disability or need for accommodation is not obvious or already known, an employer may ask the employee to provide reasonable documentation about disability and/or need for reasonable accommodation. Often, the only information needed will be the individual’s diagnosis and any restrictions or limitations. The employer also may ask about whether alternative accommodations would be effective in meeting the disability-related needs of the individual. See WYSK Questions D.5. and D.6. for more information.

The employer may either ask the employee to obtain the requested information or request that the employee sign a limited release allowing the employer to contact the employee’s health care provider directly. If the employee does not cooperate in providing the requested reasonable supporting medical information, the employer can lawfully deny the accommodation request.

N.12. May an employer voluntarily provide accommodations requested by an applicant or employee due to COVID-19 or Long COVID, even if not required to do so under the ADA? (Updated 5/15/23)

Yes. Employers may choose to provide accommodations beyond what the ADA mandates. Of course, employers must provide a reasonable accommodation under the ADA, absent undue hardship, if the applicant or employee meets the definition of disability, requires an accommodation for the disability, and is qualified for the job with the accommodation. Accommodations might consist of schedule changes, physical modifications to the workplace, telework, or special or modified equipment. See, e.g., WYSK Section D or U.S. Department of Labor Blog, Workers with Long COVID-19: You May Be Entitled to Workplace Accommodations for more information.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

OFCCP Updates Voluntary Self-Identification of Disabilities Form for Federal Contractors

 Last month, the OFCCP implemented a new self-identification form for federal contractors to provide to job applicants and employees. The new form lengthens the list of possible disabilities, replaces the current version which can be used until July and will remain valid until May 2026.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

City of Columbus Enacts Salary History Ban for Job Applicants

 Last month, the Columbus City Council passed Ordinance 0709-2023 (to be codified at CCC §2335) banning inquiries (to an applicant or other employer) into a job applicant’s salary history starting next year on March 1, 2024.  This will require most employers with 15+ employees employed within the City limits to modify their job applications and processes, except for the state, federal and county governments.  It does not cover independent contractors, collective bargaining agreements and permits employees to discuss their salary history during negotiations for new compensation.  Employers may also rely on their own records of salary history for their current and recently former employees.  Employers also may not retaliate against applicants who refuse to disclose their salary history.  I’ve included the key language of the ordinance below.

Chapter 2335 - PROHIBITED SALARY HISTORY INQUIRY AND USE 

2335.01 - Definitions  

(A) "Applicant" means any person applying for employment to be performed within the geographic   boundaries of the City of Columbus, and whose application, in whole or in part, will be solicited, received,  processed, or considered in the City of Columbus, regardless of whether the applicant is interviewed. 

(B) "Employer" means an individual, firm, limited liability company, partnership, association, labor organization, corporation, or any other entity whether or not organized for profit, that employs fifteen (15)   or more persons on a qualifying wage, commission, or other compensation basis within the City of   Columbus. “Employer” includes job placement and referral agencies and other employment agencies   when such agencies operate on behalf of an entity that otherwise meets the definition of “Employer”.   “Employer” does not include any unit of local, state, or federal government, except the City of Columbus. 

(C) "Employment" means any occupation, vocation, job, or work, including but not limited to, temporary   and seasonal work, part-time work, contracted work, contingent work, work on commission, and work   through the services of a temporary or other employment agency for which the applicant is to receive   wages or a salary. Employment does not include work as an independent contractor. 

(D) "Inquire" means to communicate any question or statement to an applicant, an applicant's current or   prior employers, or a current or former employee or agent of the applicant's current or prior employers, in   writing or otherwise, for the purpose of obtaining an applicant's salary history, or to conduct a search of   publicly available records or reports for the purpose of obtaining an applicant's salary history, but does not  include informing the applicant in writing or otherwise about the position's proposed or anticipated salary  or salary range. 

(E) "Salary history" includes the applicant's current or prior wage, benefits, or other compensation. "Salary   history" does not include any objective measure of the applicant's productivity such as revenue, sales, or other production reports.  

2335.02 - Purpose  The purpose and intent of this chapter is to elevate the best practices for hiring that promote pay equity.   The practices addressed in this chapter can, if used, perpetuate issues of systemic discrimination related to   the wage gap and wealth gap for women, especially women of color. To promote pay equity across the   workforce in the City of Columbus, the following prohibitions are established.  

2335.03 - Unlawful discriminatory practices regarding the use of salary history. 

(A) Except as otherwise provided in division (B) of this section, an employer shall not do any of the   following: 

(1) Inquire about the salary history of an applicant for employment;  

(2) Screen job applicants based on their current or prior wages, benefits, other compensation, or salary   histories, including requiring that an applicant's prior wages, benefits, other compensation or salary   history satisfy minimum or maximum criteria;  

(3) Rely solely on the salary history of an applicant, except as provided in division (C) of this section, in   deciding whether to offer employment to an applicant, or in determining the salary, benefits, or other   compensation for such applicant during the hiring process, including the negotiation of an employment   contract;  

(4) Refuse to hire or otherwise disfavor, injure, or retaliate against an applicant for not disclosing salary  history to an employer. 

(B) Notwithstanding division (A) of this section, an employer may, without inquiring about salary history,   engage in discussion with the applicant about their expectations with respect to salary, benefits, and other   compensation, including but not limited to unvested equity or deferred compensation that an applicant   would forfeit by resigning from their current employer.

(C) The prohibitions contained in this section shall not apply to any of the following: 

(1) Any actions taken by an employer pursuant to any federal, state, or local law that specifically   authorizes the reliance on salary history to determine an employee's compensation; 

(2) Applicants for internal transfer or promotion with their current employer; 

(3) A voluntary and unprompted disclosure of salary history information by an Applicant; 

(4) Any attempt by an employer to verify an applicant's disclosure of non-salary related information or   conduct a background check, provided that if such verification or background check discloses the   applicant's salary history, such disclosure shall not be solely relied upon for purposes of determining the  salary, benefits, or other compensation of such applicant during the hiring process, including the  negotiation of a contract;

(5) Applicants who are re-hired by the employer within three years of the Applicant's most recent date   of termination of employment by the Employer, provided that the employer already has past salary history data regarding the Applicant from the previous employment of Applicant; 

(6) Employee positions for which salary, benefits, or other compensation are determined pursuant to   procedures established by collective bargaining; 

(7) Federal, state, and local governmental employers, other than the City of Columbus.  

2335.04 - Complaint Procedure  An applicant may file a complaint with the Community Relations Commission under Section 2331.05(A)   alleging that an employer has engaged in or is now engaging in any violations of section 2335.03.   

2335.05 - Civil Penalties  Upon an administrative finding of violation by the commission, an employer may be subject to civil   penalties outlined in Section 2331.05(B). 

 2335.06 - Severability  If any provision or section of this chapter or the enforcement of any such provision or section is held to be   invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not   affect or render invalid or unenforceable any other provision or section of this chapter. To this end, each   of the provisions and sections of this chapter are severable.  

2335.07 - Effective Date  This Chapter shall take effect on March 1, 2024.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects De Minimis Employment Actions As Insufficient Grounds for Disability and Retaliation Claims

 Last week, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on claims for disability discrimination and FMLA retaliation.  Erwin v. Honda North America, Inc., No. 22-3823 (6th Cir. 4/21/23).  The Court found that the plaintiff had failed to identify any materially adverse employment actions which she had suffered after taking various medical leaves of absence due to her mental health issues.  She complained about a change in her job duties and reporting relationships, but none of the changes were substantial and merely involved reporting full time to one of her two managers and working full-time for that manager doing the same type of work she had previously been assigned.   The suspension of her ability to work remotely was only temporary while she was being trained.   None of these slight changes affected her compensation, job title, benefits, status, level of responsibilities, shifts, etc.

Having worked for the company for more than two decades, the plaintiff had been a recruiter since 2017.  She took a lot of FMLA leave for mental health issues.  At one point, she recruited only for full-time positions, at other points only for contingent positions.  In 2019, she recruited for both and reported to two different managers (one for full-time positions and one for contingent workers).   When a new FMLA leave request was denied for failing to supply medical documentation, she was given leave under company policy.  When she returned, she was assigned to only recruit for full-time positions and to report to one manager and to relocate her desk to be near that manager.  When she complained about that manager, the manager was disciplined for making unprofessional comments about her, but it was also found that she had poor attendance that was unrelated to her FMLA leave.  She took another FMLA leave and then resigned rather than return.  Although she later applied (and was hired) for a contingent position, she brought suit alleging disability discrimination and FMLA retaliation.

The Court found that she had not suffered an adverse employment action.  The change in her job duties back to recruiting only full-time positions did not affect anything about her job and she didn’t even testify that she preferred recruiting for contingent workers.   A mere alteration of job responsibilities is not an adverse employment action.

A change in management that did not affect her job status likewise was not an adverse employment action.

The requirement that [she] work in person, at her relocated desk, does not qualify in these circumstances either. The record shows that [her] suspension from remote work was only temporary, while she completed training. Because the revocation was temporary and “no economic loss occurred,” [her] loss of remote work capability is “properly characterized as a de minimis employment action that does not rise to the level of a materially adverse employment decision.” Bowman, 220 F.3d at 462. As for her desk being moved, Erwin doesn’t explain the significance; she simply notes that it was moved. And although she complains about increased supervision, even “intense supervision” is not an adverse employment action where, as here, Erwin was not “terminated or demoted,” and did not have her “pay rate reduced, benefits lessened, or responsibilities diminished.” Broska v. Henderson, 70 F. App’x 262, 267 (6th Cir. 2003).

The court also rejected her constructive discharge claim:

. . . Constructive discharge occurs when an employer creates “an objectively intolerable work environment to deliberately force [an] employee to resign.” . . . “[I]ntolerability is a demanding standard.” Id. The conditions must be “so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Id. (citation omitted). “[C]riticism and negative feedback do not suffice.” Id. So [her] fear of returning to work because she might face increased supervision and critical feedback does not show her work environment was intolerable. [She] has failed to show that a “reasonable person” would find the “conditions objectively intolerable.”  . . . . And [she] offers no evidence that Honda acted “deliberately” to “force” her to resign.  . . .. Even when construing the facts in [her] favor, she has not shown she was constructively discharged.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects EFMLEA Claim Where Employer's Final Offer of Reinstatement Was Not Shown to Be a Violation and Revocation of Flexible Class Schedule Affected More Than Just the Plaintiff.

On Friday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on claims by a medical assistant that it interfered with her EFMLEA leave by refusing to reinstate her to her former position or on the same terms and conditions by changing her job duties during the COVID pandemic and revoking her prior flexible work schedule.  Clement v. The Surgical Clinic, PLLC, No. 22-5801 (6^th Cir. 4-21-23).  The Court found that reassignment claim lacked merit because, after she objected to the change in job duties, she was offered a suitable transfer which she had accepted and which was willing to accommodate her job schedule.   While the revocation of her flexible schedule (to attend classes) constituted a prima facie violation of the statute, the employer was able to show that it revoked all prior authorizations of flexible schedules to attend classes – regardless of whether the employee had utilized EFMLEA or FMLA – because of the emergency situation created by the pandemic.  This was not only a legitimate and non-discriminatory reason, it applied regardless of whether the employee took EFMLEA or not.  Employees taking EFMLEA are not entitled to greater rights than employees who do not take such leave. 

According to the Court’s opinion, the plaintiff was hired for the clinic’s downtown (and busiest) clinic in 2018 where she would assist one physician and sometimes engage in patient triage.  She was allowed to shift her schedule by 30 minutes each day because of childcare responsibilities and to start two hours later when she had class (which required the employer to find replacement coverage for those hours).  When the pandemic began, the plaintiff utilized two months of leave under the Emergency Family and Medical Expansion Act.  When she sought to return to work, she was informed that she would be assigned to engage in triage on a full-time basis and that she could no longer report to work later than the rest of the staff.  When she objected, the employer found that one of its other offices was willing to give her a non-triage position and permit her to start work 30 minutes later each day.  However, around the same time, the employer notified all of its clinics that employees could no longer miss work in order to attend class because of the staffing shortage caused by the pandemic.  The plaintiff and at least one of the employee resigned because of the new policy of no longer accommodating class schedules and the plaintiff filed suit, claiming that these changes violated her rights under the EMFLEA.

The EFMLEA entitles qualified employees to reinstatement to the same position they held prior to taking leave—or, at least, to an “equivalent position.”  . . . An equivalent position is “one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status” and which “involve[s] the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a). Among other things, employees are generally entitled to work the same or an equivalent work schedule upon their return from leave. Id. § 825.215(e)(2). That said, “[t]he requirement that an employee be restored to the same or equivalent job with the same or equivalent pay, benefits, and terms and conditions of employment does not extend to de minimis, intangible, or unmeasurable aspects of the job.” Id. § 825.215(f).

The Court refused to find any interference with the plaintiff’s EFMLEA right to reinstatement based on its initial condition of assigning her to full-time triage work and revoking her authorization to start and end work 30 minutes after the rest of the staff because it was not the employer’s final offer.

But we are aware of no authority suggesting that an employer’s offer that it later revises is binding for purposes of establishing interference. On the other hand, it is well-established that plaintiffs must prove they suffered harm from an employer’s interference with their statutory rights. . . . To assess harm, we must evaluate the employer’s action that prompted the employment outcome, and it would seem that early offers would be superseded by the final offer on which the plaintiff was required to act. Notably, we have also consistently held that “the FMLA is not a strict-liability statute.” . . . approach tends toward strict liability in that it would deprive even the most well-meaning employers the opportunity to course-correct from potential EFMLEA violations—for example, by returning to the table with their employees to work out acceptable terms of employment.

 . .. To be considered equivalent, an employee’s new role must be identical in pay, benefits, and working conditions. 29 C.F.R. § 825.215(a). There is no dispute that [her] compensation and benefits would have gone unchanged following a transfer to The Vein Centre. What’s more, [she] would have continued working as a medical assistant at The Vein Centre, which is located a short distance away from TSC. And although she argues that TSC’s first reinstatement offer entailed substantially altered job duties (in that TSC would have assigned her to triage full-time, for example), she makes no effort to establish how or why TSC’s final offer suffered from the same shortcomings. Nor has she developed any argument on appeal that working at The Vein Centre, in and of itself, would deprive her of an equivalent position. Thus, even viewing the facts in the light most favorable to Clement, nothing suggests that the position at The Vein Centre would have involved anything less than “the same or substantially similar duties and responsibilities” as Clement’s previous role. And TSC agreed to accommodate her preferred 8:00 a.m. start time at The Vein Centre—a fact which Clement concedes. Thus, no reasonable factfinder could determine that her pre- and post-leave positions were inequivalent in this regard.

However, the revocation of her two-hour schedule delays when she previously would have attended class presented a different issue and outcome. 

The district court held that this series of events raised a question of fact as to whether TSC restored Clement to the same or an equivalent position at the company. We agree. 29 C.F.R. § 825.215(e)(2) provides that employees are generally entitled to “the same or an equivalent work schedule” following leave. There is no dispute that TSC did not allow Clement to work the same schedule she had before her EFMLEA leave. And TSC’s proposed altered schedule, excluding time away during the workday to attend classes, made it impossible for her to balance her school and work obligations—ultimately leading to her resignation from TSC. We thus cannot say that this schedule change was de minimis as a matter of law. See id. § 825.215(f).

Nonetheless, “interference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.”

The FMLA relatedly provides that it “shall [not] be construed to entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.”  . . .  Thus, employees who request FMLA or EFMLEA leave “have no greater protection against [their] employment being terminated for reasons not related to [their EFMLEA] request than [they] did before submitting that request.” . . . This means a plaintiff has no actionable interference claim if her employer can show that it would have made the same decision at issue even had the employee not exercised her EFMLEA rights.

The employer had no difficulty proving that it would have the same scheduling decision even if the plaintiff had not taken EFMLA leave:

 . . . employees testified that accommodating [her] school schedule “put a hardship on [it]” even before the pandemic. Then, after the COVID-19 outbreak in March 2020, [its] staff had to balance increased demand at their clinics with staffing shortages. Under these circumstances, [it] concluded it could no longer permit staff to leave the office during working hours for school. It therefore enacted a company-wide policy prohibiting flexible school and work schedules. This pandemic-related change was not specific to [her] and would have occurred regardless of her EFMLEA leave. Therefore, [it] proffered a legitimate justification for its decision.

The plaintiff attempted to prove that the policy change was related only to her reinstatement.  However, when the employer initially revoked her authorization to attend class during work hours, it did so in connection with the pandemic scheduling challenges – the same justification for the company-wide policy.  This was not inconsistent with the employer’s explanation for the policy.  While the pandemic cannot be a magic bullet justification for every employment decision, in this case, even the plaintiff acknowledged the challenges facing the medical profession.    It was also undisputed that the employer’s decisions affected (and motivated the resignations) of individuals besides the plaintiff.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.