The Biden administration announced the end of the COVID-19 pandemic declaration on May 11, 2023. While the news has been dominated by the end of the Title 42 declaration, employers are facing uncharted waters, as well. Many employers created various workplace mandates, including vaccination requirements, social distancing, use of personal protective equipment, and payment of various COVID-19 needs. Federal and state regulations provided legal cover to employers to create these various COVID-19 mandates and financial assistance.
The EEOC has warned that regulations in place related to COVID-19 should not be abandoned wholesale. The EEOC has provided updated guidance for employers to navigate a post-pandemic workforce.
The main EEO laws impacted are:
- the Americans with Disabilities Act;
- Title VII of the Civil Rights Act of 1964, specifically religious objections; and
- the Age Discrimination in Employment Act (ADEA).
The Genetic Information Nondiscrimination Act (GINA) is implicated to a lesser degree.
A non-exhaustive list of issues most important to employers are:
- whether employers may ask about COVID-19 symptoms;
- why an employee was absent from work;
- COVID-19 vaccination requirements; and
- whether exemptions to a vaccination requirement should be granted.
The EEOC’s guidance still permits employers to ask employees whether they have COVID-19 symptoms and screen for symptoms when reporting to work if it is a business necessity. Keeping a productive workforce free of COVID-19 could be a business necessity.
However, an employer cannot ask if an employee’s family member has COVID-19 symptoms. An employer may still inquire with employees why they were absent from work and ask for a provider’s note. Employers may also bar employees from entering the workplace if they present COVID-19 symptoms.
Workplace vaccine requirements and accommodations based on religious belief or disability remain unchanged. An employer may require COVID-19 vaccines as a condition of employment so long as religious beliefs and disabilities are accommodated to the extent required by law.
Currently, an employer may inquire into the religious belief or disability to determine whether an accommodation will be offered or the type of accommodation to offer. An employer need not accommodate a religious belief or disability if it would create an undue hardship. A non-exhaustive list of factors to consider for accommodation include:
- The nature and cost of the accommodation needed.
- The overall financial resources of the facility making the reasonable accommodation, taking into account the number of people employed at the facility and the facility’s expenses.
- The overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity).
- The type of operation of the employer, including the structure and functions of the workforce, as well as the geographic separateness and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer.
- The impact of the accommodation on the operation of the facility.
Accommodations and undue hardships should be determined on a case-by-case basis, preferably with input from legal counsel.
The EEOC’s guidance is subject to change while the contours of the end of the COVID-19 pandemic declaration are being defined.
This is not legal advice and should not be construed as creating an attorney-client relationship. This article provides commentary only on the topics discussed herein.