Update Applicable to:

All employers

What happened?

On 5/15/2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued a number of updates to its COVID-19 technical assistance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” including adding a new question and answer about the end of the federal declaration of the COVID-19 public health emergency.

What are the details?

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.

For more information, please see the links below:

EEOC Announcement: Link

EEOC Guidance: Link (To see all the new updates, search within the page for “5/15/23”; there are 31 instances)

Article: Link

Jackson Lewis Law Firm Breakdown: Link; Link 2

What do employers need to do?

Employers should review the EEOC guidance linked above. Employers also need to remember that medical conditions must be reviewed on a case-by-case basis through a documented interactive dialogue process with the employee in order to explore and determine what reasonable accommodations may be available that will allow the employee to perform the essential duties of their position. That may include an on-the-job accommodation or a leave of absence in accordance with federal law and/or equivalent or stricter state leave laws. Employers should always consult with their HR professionals and leave administrators during such circumstances, and their employment attorney, if considering denial of leave or accommodation, or disciplinary action for such employees as there may be legal exposure and liability if the situation is not properly handled.

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