EEOC Continues to Update COVID-19-Related Practical Guidance

Throughout the pandemic, the Equal Employment Opportunity Commission (EEOC) has focused on answering key employer questions and providing hands-on guidance about the evolving COVID-19 issues employers face.

"The pandemic has had a disproportionate effect on women, on people of color, on older workers, on people with disabilities," said EEOC Vice Chair Jocelyn Samuels. "And as we move toward a more complete reopening of the workplace, I think we need to be conscious of the needs of each of those groups so we can ensure that barriers don't exist to reintegration into the workplace."

Samuels and EEOC Commissioner Andrea Lucas spoke on a panel at the SHRM Employment Law & Compliance Conference 2022 in Washington, D.C., on March 29.

They encouraged HR professionals to reach out to the EEOC about the COVID-19-related issues employers continue to confront so the agency can add relevant updates to its "What You Should Know" document.

The EEOC wants to know what information employers need most, Samuels said. The guidance is intended to be a living document that adds answers to questions as they come up.

"We've really got a host of very helpful Q&As, although they are getting longer and longer," Lucas said.

Here are a few key topics that the agency continues to update.

COVID-19 as a Disability

Some agencies focused on disabilities related to "long COVID" for people with long-term effects of COVID-19, Lucas said. However, COVID-19-related issues beyond long COVID may qualify as disabilities under the Americans with Disabilities Act (ADA).

Lucas explained that COVID-19 is treated the same under the ADA as any other disability. The law's definition of "disability" includes the following:

• An actual disability, which is a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing or hearing).
• A history or record of an actual disability (such as cancer that is in remission).
• A perception that a worker has a disability or is regarded as having a disability.

Additionally, the EEOC's guidance noted that certain conditions can be caused or worsened by COVID-19. For example, an employee who had COVID-19 may develop heart inflammation, experience a stroke or develop diabetes that is attributed to the coronavirus after COVID-19 symptoms resolve.

Lucas noted that COVID-19-related illness will not be considered ADA-qualifying disabilities when workers experience mild symptoms that resolve in a few weeks with no other consequences.

Mandatory Vaccination Policies

The hottest workplace topic on the COVID-19 front has been mandatory vaccination policies, Lucas said.

The EEOC has said that the federal anti-discrimination laws it enforces don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. Employers that encourage or require vaccinations, however, must consider reasonable accommodations when employees refuse to get vaccinated for medical reasons or based on sincerely held religious beliefs, unless an accommodation would cause undue hardship for the business. 

Many employer questions have focused on religious accommodations. Although employers generally must consider objections based on sincerely held religious belief, personal or political views are not protected under federal anti-discrimination laws.

Notably, courts have found that even small costs can cause undue hardship in religious accommodation cases, and the EEOC clarified in its guidance that costs include the risk of spreading the coronavirus and other safety hazards.

Employers should consider objective information, the EEOC said, such as whether the employee works outdoors or indoors; works alone or in a group; or has close contact with co-workers, customers or other business partners.

Employers may also consider the number of employees who are seeking similar accommodations and the cumulative cost or burden on the employer.

Caregiver Discrimination

The EEOC recently issued new guidance on curbing COVID-19-related discrimination against caregivers in the workplace.

"We know the pandemic has been particularly difficult for caregivers—a population that is disproportionately, though not exclusively, comprised of women," said Samantha Grant, an attorney with Sheppard Mullin in Los Angeles and the moderator for the panel.

Samuels noted that many workers have struggled to balance their obligations to family and friends with their work responsibilities throughout the pandemic. The guidance compiles all the information employers need to understand their responsibilities regarding the fair treatment of caregivers, she said.

Even if an employer means well, assumptions about caregivers may result in illegal discrimination when employment decisions are made based on a worker's protected characteristics, such as age, disability, genetic information, national origin, race, religion and sex (including gender identity, sexual orientation and pregnancy), according to the update.

Title VII of the Civil Rights Act of 1964, the ADA and other employment laws don't explicitly cover caregivers, but employers can still run afoul of these laws when they act on assumptions or stereotypes or when they apply policies unevenly based on protected traits, said Anthony Dick, an attorney with Fisher Phillips in Cleveland, to SHRM Online when the guidance was issued.

Numerous examples of potentially unlawful conduct are provided, such as declining to assign high-profile or demanding projects to a female caregiver based on gender stereotypes that assume the female caregiver cannot, should not or would not want to work extra hours or be away from her family if a relative contracted COVID-19. According to the guidance, denying a male co-worker the option to telework to care for a child or parent would also be unlawful if such requests are approved for similarly situated female employees. 

"Given the EEOC's acknowledgment that it has received a sharp increase in COVID-related charges in general over the last year—and this latest guidance emphasizing caregiver discrimination—employers should use the guidance as a good road map to help avoid EEO [equal employment opportunity] claims," Dick said.