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Dec. 14, 2021 – EEOC Issues New COVID-19 Guidance, Protecting Workers from Discrimination

On December 14, 2021, the Equal Employment Opportunity Commission (EEOC) amended technical assistance guidance titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” This document expands on guidance issued by the U.S. Department of Health and Human Services (HHS) in September 2021, which included several examples of how long COVID can meet the definition of disability under federal law. In the amended guidance, the EEOC clarifies that workers with COVID-19 can be protected from discrimination under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Importantly, the EEOC states that employees are not required to be impaired for any specific duration to qualify for protections under federal law. This will provide protection for employees whose long COVID symptoms are infrequent or irregular in addition to employees with persistent long COVID symptoms.

The amended EEOC guidance brings clarity to many questions about COVID-19 and disability. Specifically, the amended guidance addresses the following:

  • How does the ADA define disability, and how does the definition apply to COVID-19?
  • When is COVID-19 an actual disability under the ADA?
  • Is COVID-19 always an actual disability under the ADA?
  • What are some examples of ways in which an individual with COVID-19 might or might not be substantially limited in a major life activity?
  • Can a person who has or had COVID-19 be an individual with a “record of” a disability?
  • Can a person be “regarded as” an individual with a disability if the person has COVID-19 or the person’s employer mistakenly believes the person has COVID-19?
  • What are some examples of an employer regarding a person with COVID-19 as an individual with a disability?
  • If an employer regards a person as having a disability, for example by taking an adverse action because the person has COVID-19 that is not both transitory and minor, does that automatically mean the employer has discriminated for purposes of the ADA?
  • Can a condition caused or worsened by COVID-19 be a disability under the ADA?
  • Does an individual have to establish coverage under a particular definition of disability to be eligible for a reasonable accommodation?
  • When an employee requests a reasonable accommodation related to COVID-19 under the ADA, may the employer request supporting medical documentation before granting the request?
  • May an employer voluntarily provide accommodations requested by an applicant or employee due to COVID-19, even if not required to do so under the ADA?
  • If an employer subjected an applicant or employee to an adverse action, and the applicant or employee is covered under any one of the three ADA definitions of disability, does that mean the employer violated the ADA?
  • Do any ADA protections apply to applicants or employees who do not meet an ADA definition of disability?

The agency’s updated guidance will provide much-needed clarity to both employers and employees who are facing challenges in the workplace caused by the coronavirus pandemic. Interested in learning more? Read the rest of the EEOC guidance here.

P.M. Asked: Can I Negotiate Remote Work as a Condition of Employment if I am Immunocompromised?

“I am immunocompromised and thinking of switching jobs. Because of my compromised immune system, I need to work remotely during the coronavirus pandemic to avoid exposure to COVID-19. My current employer allows me to work remotely as a reasonable accommodation, but I don’t want to move to another job if they will not provide it. How can I negotiate remote work as a reasonable accommodation from a prospective employer as a condition of employment?”

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Biden Administration to Distribute Free N95 Masks

On January 19, 2022, the Biden Administration announced that U.S. residents will be eligible to receive free N95 masks in the coming weeks. 400 million masks will be made available to the public from the Strategic National Stockpile, which currently has over 750 million masks in reserve. These masks will be available for pickup at local pharmacies and communities health centers across the country that have partnered with the federal government’s COVID-19 vaccination campaign and each individual will be eligible to receive up to three masks.

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