By Michael A. Palombo, Esquire Paul N. Lalley, Esquire and Rebeca R. Chieffallo
Published on: Tue 20th Jun, 2023 By: Campbell Durrant, P.C.
Following the termination of the COVID-19 public health emergency on May 11, 2023, the EEOC released updated COVID-19 guidance. These updated guidelines continue to allow some employer practices regarding COVID-19 inquiries that were permitted during the public health emergency. Overall, the EEOC emphasizes that the guidelines are subject to change based on the findings and determinations of health agencies like the CDC.
Employers are still expected to comply with ADA requirements, such as keeping employee medical information confidential and meeting the “business necessity” standard when applicable. Further, employers are allowed to continue testing employees for COVID-19 in accordance with CDC guidelines and can inquire about: an employee’s COVID-19 status; any testing that was or was not conducted; and if applicable, subsequent test results. These matters can be discussed when sick time, close proximity to others, and both domestic and international travel are at issue. General inquiries about exposure are preferred over asking employees about specific persons or family matters. Certain accommodations for employees including, but not limited to, those with high-risk conditions or religious exemptions are still required to be implemented. Further, accommodations for those suffering from long COVID-19 may also be required. Employers are advised to stay updated on public health agency findings related to COVID-19 in order to ensure compliance.
Takeaways:
• The EEOC has permitted some COVID-19 employer procedures to continue despite the end of the public health emergency.
• Employers are still expected to comply with certain EEO legal requirements, such as keeping employee medical information confidential and meeting the “business necessity” standard under the ADA when applicable.
• The ADA does not prohibit employers from complying with applicable CDC guidelines, therefore, it is important to keep apprised of any guidance changes from such public health agencies.
• Certain accommodations for those including, but not limited to, high risk employees or those with religious exemptions are still required to be implemented, and accommodations for those suffering from long COVID may also be required.
Bottom Line:
The EEOC’s recent guidance update affirms that some employer monitoring practices that originated from the declaration of COVID-19 as a public health emergency are allowed to continue despite the end of the public health emergency. Employers must still provide accommodations to high-risk individuals and may have to implement new accommodations related to the effects of long COVID. The attorneys at Campbell Durrant are here to help you with any compliance questions you may have.
