The pandemic is still with us, so the EEOC has updated their technical assistance to COVID-19…again.
The EEOC has actually provided two updates since our October blog, “Here We Go Again…Again! EEOC Updates”, which was the riveting sequel to our June blog “EEOC Updates Technical Assistance for COVID-19 Guidance.” Since it is the most wonderful time of the year, and you’re probably stretched for time trying to squeeze in shopping, drinking hot cocoa, and visiting with family, we’re going to give you some highlights by listing the ones we find particularly interesting.
If you’d like some fireside reading, here are the official extended versions from November, covering Retaliation Assistance; and just this week, on December 14, they added a section Clarifying when COVID-19 May Be A Disability. If all these updates leave you wanting even more, cozy up by the fire with the EEOC’s storybook collection of Selected EEOC Decisions, released December 7.
M.2. What are some examples of employee activities that are protected from employer retaliation?
- Filing a charge, complaint, or lawsuit, regardless of whether the underlying discrimination allegation is successful or timely. For example, employers may not retaliate against employees who file charges with the EEOC alleging that their supervisor unlawfully disclosed confidential medical information (such as a COVID-19 diagnosis), even if the EEOC later decides there is no merit to the underlying charges. Moreover, a supervisor may not give a false negative job reference to punish a former employee for making an EEO complaint or refuse to hire an applicant because of the applicant’s EEO complaint against a prior employer.
- Reporting alleged EEO violations to a supervisor or answering questions during an employer investigation of the alleged harassment. For example, an Asian employee who tells a manager or human resources official that a coworker made abusive comments accusing Asian people of spreading COVID-19 is protected from retaliation for reporting the harassment. Workplace discrimination laws also prohibit retaliation against employees for reporting harassing workplace comments about their religious reasons for not being vaccinated. Similarly, workplace discrimination laws prohibit retaliation against an employee for reporting sexually harassing comments made during a work video conference meeting.
- Requesting accommodation of a disability (potentially including a pregnancy-related medical condition) or a religious belief, practice, or observance regardless of whether the request is granted or denied.
M.6. Should an employer never take action against someone who has engaged in EEO activity? (11/17/21)
No. Engaging in protected EEO activity does not prevent discipline of an employee for legitimate reasons. Employers are permitted to act based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline. For example, if an employee performs poorly, has low productivity, or engages in misconduct, an employer may respond as they normally would, even if the employee has engaged in protected activity. Similarly, an employer may take non-retaliatory, non-discriminatory action to enforce COVID-19 health and safety protocols, even if such actions follow EEO activity (e.g., an accommodation request).
M.7. Does the law provide any additional protections to safeguard ADA rights? (11/17/21)
Yes. The ADA prohibits not only retaliation for protected EEO activity, but also “interference” with an individual’s exercise of ADA rights. Under the ADA, employers may not coerce, intimidate, threaten, or otherwise interfere with the exercise of ADA rights by job applicants or current or former employees. For instance, it is unlawful for an employer to use threats to discourage someone from asking for a reasonable accommodation. It is also unlawful for an employer to pressure an employee not to file a disability discrimination complaint. The ADA also prohibits employers from interfering with employees helping others to exercise their ADA rights.
The employer’s actions may still violate the ADA’s interference provision even if an employer does not actually carry out a threat, and even if the employee is not deterred from exercising ADA rights.
N.4. 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? (12/14/21)
Examples of Individuals with an Impairment that Substantially Limits a Major Life Activity:
- An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.
- An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.
- An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.
- An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA. For other examples of when “long COVID” can be a substantially limiting impairment, see the DOJ/HHS Guidance.
Examples of Individuals with an Impairment that Does Not Substantially Limit a Major Life Activity:
- An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.
- An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.
N.5. Can a person who has or had COVID-19 be an individual with a “record of” a disability? (12/14/21)
- Yes, depending on the facts. A person who has or had COVID-19 can be an individual with a “record of” a disability if the person has “a history of, or has been misclassified as having,” 29 C.F.R. § 1630.2(k)(2) , an impairment that substantially limits one or more major life activities, based on an individualized assessment.
N.7. What are some examples of an employer regarding a person with COVID-19 as an individual with a disability? (12/14/21)
The situations in which an employer might “regard” an applicant or employee with COVID-19 as an individual with a disability are varied. Some examples include:
- An employer would regard an employee as having a disability if the employer fires the individual because the employee had symptoms of COVID-19, which, although minor, lasted or were expected to last more than six months. The employer could not show that the impairment was both transitory and minor.
- An employer would regard an employee as having a disability if the employer fires the individual for having COVID-19, and the COVID-19, although lasting or expected to last less than six months, caused non-minor symptoms. In these circumstances, the employer could not show that the impairment was both transitory and minor.
N.9. Can a condition caused or worsened by COVID-19 be a disability under the ADA? (12/14/21)
Yes. In some cases, regardless of whether an individual’s initial case of COVID-19 itself constitutes an actual disability, an individual’s COVID-19 may end up causing impairments that are themselves disabilities under the ADA. For example:
- An individual who had COVID-19 develops heart inflammation. This inflammation itself may be an impairment that substantially limits a major bodily function, such as the circulatory function, or other major life activity, such as lifting.
- During the course of COVID-19, an individual suffers an acute ischemic stroke. Due to the stroke, the individual may be substantially limited in neurological and brain (or cerebrovascular) function.
- After an individual’s COVID-19 resolves, the individual develops diabetes attributed to COVID-19. This individual should easily be found to be substantially limited in the major life activity of endocrine function. See Diabetes in the Workplace and the ADA for more information.
In some cases, an individual’s COVID-19 may also worsen the individual’s pre-existing condition that was not previously substantially limiting, making that impairment now substantially limiting. For example: An individual initially has a heart condition that is not substantially limiting. The individual is infected with COVID-19. The COVID-19 worsens the person’s heart condition so that the condition now substantially limits the person’s circulatory function.
N.11. 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? (12/14/21)
Yes. As with employment accommodation requests under the ADA for any other potential disability, when the disability or need for accommodation is not obvious or already known, an employer may ask the employee to provide reasonable documentation about disability and/or need for reasonable accommodation.
Please note that as lengthy as this blog is, we have truly barely touched on the guidance provided in the links above. It will definitely be a worthwhile exercise to spend a little closed door time reviewing this information.
Below are some useful links from our last blog posts. These posts have information that continues to be applicable, so we’re including them here for you for reference purposes.
- EEOC Complete Collection of Coronavirus and COVID-19
- Interim Public Health Recommendations for Fully Vaccinated People
- Guidance on Long COVID
- COVID-19 “Ask The EEOC” Webinar
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