EEOC Commissioners Answer HR's COVID-19-Related Questions

​LAS VEGAS — HR professionals had to navigate uncharted waters during the COVID-19 pandemic, and they've turned to government agencies, such as the U.S. Equal Employment Opportunity Commission (EEOC), for real-time guidance as they create and refine their remote-work, COVID-19 testing and vaccination, and other pandemic-related policies.

EEOC Chair Charlotte Burrows and Commissioner Keith Sonderling joined Emily Dickens, chief of staff, head of government affairs and corporate secretary for the Society for Human Resource Management (SHRM), to answer lingering questions about compliance with anti-discrimination laws as the coronavirus crisis continues. They were speaking at the SHRM Annual Conference & Expo 2021 on Sept. 9 in Las Vegas and virtually.

Sonderling said he's very proud of the COVID-19-related resources that the EEOC has issued, and he encouraged HR professionals to visit the agency's website to review guidance and check for updates.

Here are a few key questions Burrows and Sonderling addressed from in-person and virtual conference attendees.

How should employers handle an influx of requests from employees to work from home as a reasonable accommodation?

Many conference attendees nodded their heads in agreement when a participant said HR has been inundated with requests from employees who want to continue working remotely as an accommodation under the Americans with Disabilities Act (ADA).

How should HR respond? Burrows said employers and employees alike are dealing with difficult issues stemming from the pandemic. Employees may be worried about their own health or that of a family member. They may have child care issues, and they may have other concerns. 

Employers need to explore reasonable accommodations, but they can deny a request that would cause an undue hardship for the business, and there may be alternative accommodations available.

"It comes down to the essential functions of the job," Sonderling said. Under the ADA, employers must engage in an interactive dialogue with the employee who requested the accommodation to determine if there is a disability-related need for the accommodation and whether the request to work remotely is a reasonable accommodation.

The EEOC's COVID-19 resources explain the following:

Under the ADA, reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an undue hardship, meaning significant difficulty or expense. An employer has the discretion to choose among effective accommodations. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available absent undue hardship.

How do medical and religious exemptions interact with state vaccination mandates?

Sonderling noted that it can be confusing for employers. He explained that the EEOC provides guidance on the federal anti-discrimination laws that the agency enforces and generally does not opine on how state laws interact with federal law.

"Federal law is a floor, not a ceiling," Burrows added, so state laws can be more protective of employees but not less.

Burrows said the EEOC's guidance addresses medical and religious objections to getting vaccinated. Employers should explore reasonable accommodations with employees who have objections that are protected under the ADA and Title VII of the Civil Rights Act of 1964. Accommodations may need to be provided unless they would cause an undue hardship on the business.

How can employers help ensure equitable access to COVID-19 vaccines and information about vaccination?

In the early days of vaccine distribution, there were more barriers for many people who wanted to get vaccinated or wanted more information about vaccines. For example, people in rural areas or with language or technology barriers may have had trouble getting the information they needed.

"Accessibility has really increased," Burrows observed. Now, employers may want to gather more details. Try to figure out what specific barriers employees are facing, Burrows suggested. She said the solution may be fact-specific for a particular employee.

Employers can also refer to information from the U.S. Centers for Disease Control and Prevention (CDC) on workplace vaccination programs. "By providing information about COVID-19 vaccination and establishing supportive policies and practices, employers can help increase vaccine uptake among essential workers," according to the CDC. "Strong confidence in the vaccines within your workplace leads to more people getting vaccinated, which leads to fewer COVID-19 illnesses, hospitalizations and deaths."

Is the EEOC planning to issue guidance on 'long COVID'?  

Employees with long-term effects of COVID-19—who are often referred to as COVID-19 long-haulers—may have certain legal protections.  

The departments of Justice and Health and Human Services recently issued guidance stating that "long COVID" might qualify as a disability if it substantially limits a major life activity and that an individualized assessment is necessary.

"We've been hearing a lot about that issue," Burrows said. She told conference attendees that the EEOC hopes to issue guidance soon, so employers should continue to check the website for updates.