Clyde Snow

Navigating the Changes: EEOC Updates Technical Assistance on Covid-19

by | Jun 2, 2023

The Covid-19 pandemic has dramatically impacted the workplace, leading to significant changes in how employers address employee health and safety. As the world adapts to the evolving landscape, the Equal Employment Opportunity Commission (EEOC) has been at the forefront of ensuring fair and equitable treatment for all employees. In line with this commitment, the EEOC has recently updated its technical assistance on Covid-19, providing crucial guidance to employers and employees alike. Below are a number of interesting updates, as well as those the EEOC thought were particularly important, which you will find in the last three bullet points.

Updates from the EEOC on Covid-19

• If an employee calls in sick, the employer is permitted to ask whether the employee has Covid-19 or has symptoms of Covid-19. (A.1)

• If CDC guidance recommends that employees with Covid-19 or Covid-19 symptoms stay home for a certain period of time, the employer is permitted to require its employees to remain home for the recommended period. (A.4)

• If the employer wants to require all employees, or particular employees, to be tested for Covid-19 or to have their temperatures taken, these measures must be “job-related and consistent with business necessity.” (A.9)

• An employer cannot ask an employee whether his or her family members have Covid-19 or symptoms of Covid-19. Such an inquiry would violate the Genetic Information Nondiscrimination Act. (A.10)

• If an employee refuses to cooperate with the employer’s lawful Covid-19-screening measures, the employer can require that employee to stay out of the workplace. However, the EEOC recommends asking what the concern is. If confidentiality, then the employer may be able to obtain cooperation by reassuring the employee that medical information will remain confidential. If the employee requires a reasonable accommodation, the employer should discuss that with the employee and consider providing it. (A.11)

• Pregnant employees who don’t want to be vaccinated against Covid-19 should be treated the same as those who don’t get vaccinated because of disabilities or religious beliefs. (K.2)

• Employers can still offer unlimited incentives to employees to be vaccinated against Covid-19, as long as the employer or its agent is not the one administering the vaccines. Vaccine information must be kept confidential. (K.16)

• Reasonable accommodations for long Covid-19 might 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.” (D.19)

• The end of the public health emergency does not mean that employers can automatically quit making reasonable accommodations that may still be needed. (D.20)

• When providing harassment training, employers should consider covering harassment of employees who are still wearing masks or taking other Covid-19-related precautions. The training can also cover harassment of employees who have been exempted from getting vaccinated due to a religious objection. (E.2)

The EEOC’s updated technical assistance on Covid-19 provides essential guidance to employers, enabling them to navigate the complexities of the pandemic while upholding equal employment opportunities. By addressing the above-referenced issues and policies, the EEOC ensures that workplaces remain inclusive and equitable. Employers should familiarize themselves with these updates, implement necessary adjustments, and maintain open lines of communication with employees to foster a safe and accommodating work environment. As we move forward in these challenging times, the EEOC’s guidance serves as a valuable resource to foster a fair and inclusive workplace for all.

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