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EEOC Issues Updated FAQs on COVID Accommodation

On May 11 2023, the COVID-19 Public Health Emergency ended. Along with the ending of the Public Health Emergency, the Equal Employment Opportunity Commission (EEOC) have updated their FAQ’s regarding reasonable accommodations to include accommodations for Long COVID, as a protected disability. However, accommodations are not only required under federal law, California has also made accommodations available to employees with Long COVID, as of September 2022.

The U.S. Department of Health and Human Services (HHS) have determined that Long COVID is a disability under the Americans with Disabilities Act (ADA), Section 504, and Section 1557. As such, because Long COVID is a protected disability, employers should be mindful of an employee’s request for accommodations even though a public health emergency has ended.

Although the health emergency has ended, reasonable accommodations provided as a result of COVID have not been terminated. “[The] 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.” Under the ADA, reasonable accommodations due to COVID, must be consistent with the ADA’s “business necessity” standard. Whereas the employer must provide a reasonable accommodation unless it would pose an undue hardship, meaning significant difficulty or expense.

The California Civil Rights Department (formally Department of Fair Employment and Housing), states that an employee may be entitled to a reasonable accommodation unless the employer can demonstrate, after engaging in the interactive process, that an accommodation would impose an undue hardship, the employee would be unable to perform their essential duties with the accommodations, or performing the duties even with the reasonable accommodations could endanger the employee’s health or the health of others.

Under EEOC and California Department of Public Health (CDPH) FAQ’s, reasonable accommodations to address various symptoms of Long COVID varies and depends on various factors such as the nature of the symptoms, job duties, and the design of the workplace. Accommodations can include providing a quiet workspace, using noise cancelling or white noise devices, uninterrupted worktime, alternative lighting, flexible work schedules, specialized equipment, or rest breaks among other recommendations.

An employee may need to submit a request to their employer for any accommodation and the employer may request medical documentation to clarify the need for accommodations. It is important to note that the request for medical documentations must only be a request for documents related to the existence of the disability or the need for accommodations.

Additional Information

• https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#D
• https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2023/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf

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