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Accommodations Still on the Table in a Post-COVID World

June 7, 2023

Laura L. Rubenstein

On May 11, 2023, the Biden administration announced that COVID-19 was no longer a public health emergency. Four days later on May 15, 2023, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19-related technical guidance in response. The updated guidance advises employers about their continuing obligations under the Americans with Disabilities Act (“ADA”), and other equal employment opportunity laws.

In this most recent update, the EEOC warned employers that the termination of the public health emergency does not simply end pandemic-related accommodations granted to employees. The guidance states that employers must continue to engage in the ADA’s interactive process and consider, for example, providing remote work accommodations or hybrid work schedules. Employers are obligated to ascertain whether the existing accommodations remain necessary based on each employee’s individual medical circumstances.

Additionally, the EEOC’s guidance recognized that “long COVID” or “post-COVID conditions” continue to affect employees who sometimes request quiet workspaces, noise canceling headphones, and uninterrupted work time to address brain fog.

The EEOC also suggested that employers should monitor acts of workplace harassment related to COVID-19. Harassment in the COVID-19 context could involve employees being harassed for taking certain safety precautions, such as wearing masks for disability-related reasons.

The EEOC’s guidance was silent about the continued legality of COVID-19 vaccination requirements. As a general matter, however, employers may maintain vaccine requirements if they are job-related and consistent with business necessity, and if they engage in an interactive process with employees seeking reasonable accommodations to a vaccination requirement.

The U.S. Supreme Court heard oral arguments in April 2023 on whether a vaccine requirement constituted an “undue burden” for religious accommodation requests. Stay tuned for a forthcoming decision which could impact employers’ ability to deny accommodation requests based on an employee’s sincerely held religious beliefs.

In light of the EEOC’s guidance, employers should proceed carefully as they adjust to the post-COVID-19 employment landscape and be mindful of continuing obligations arising under existing law before immediately resorting to pre-pandemic policies.

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