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EEOC: Intersection of ADA, COVID-19 requires creative reopening policies

The U.S. Equal Employment Opportunity Commission has received thousands of charges related to COVID-19 since the pandemic began. As of December 2021, more than 2,700 charges were related to COVID-19 vaccines, Bloomberg Law reported, with 300 of these charges citing the Americans with Disabilities Act.

Those charges signal why employers need to be careful in crafting reopening policies and procedures. In this post, you can check the answers to employers' biggest concerns.

At what point is COVID-19 a disability?

Specialists state that COVID-19 can present a variety of ways but may be classified based on the duration of symptoms. So-called "short" COVID-19 typically lasts fewer than three weeks, while "post-acute" COVID-19 symptoms may linger beyond three weeks, but clear up after 12 weeks. "Long" COVID-19 occurs when symptoms persist for 12 weeks or longer.

The ADA is designed to have an open-ended definition of the term "disability". Generally, though, the law defines a disability as any physical or mental impairment that substantially limits a major life activity. Covered employees also must have a record of, or be regarded as having a substantial impairment.

Short-term COVID-19 cases may not necessarily fall under the purview of the ADA, as employees may be able to take shorter periods of leave to recover from illness. But some states and jurisdictions may have legal protections for those experiencing symptoms that substantially limit major life activities, she continued.

How do you accommodate workers with long COVID-19?

Long COVID-19 may be one of the most pressing issues for employers undergoing workplace reopenings. As time goes on, employers are going to hear more and more about the effects of long COVID.

Data from the Centers for Disease Control and Prevention shows that, as of March 1, 2022, an estimated 43% of the U.S. population had been infected with COVID-19. Of that contingent, long COVID-19 is estimated to have affected between 10% to 30% of patients.

Employees may need to be reminded that they should not ignore possible symptoms of long COVID-19, as some may dismiss their symptoms or fail to recognize them altogether.

Previously undisclosed disabilities can come into play, too.

Aside from these provisions, employers can also take precautions such as requiring face coverings and other personal protective equipment. In customer service settings that require an employee to make his or her face visible, employers may provide employees with low-cost, clear face coverings.

Additionally, employers may be able to restructure certain parts of an employee's job or otherwise reallocate them, though this would not apply to the essential functions of an employee's job. Essential functions can't be restructured but they can be accommodated.

Are your COVID-19 vaccine questions lawful?

Questions related to a disability screening — as with any medical examination administered by an employer — must be job-related and consistent with business necessity. This includes questions about COVID-19 symptoms, diagnoses, and exposure.

Exposure is specific to viral tests, not antibody tests, employers should be mindful that they do not want to violate the Genetic Information Nondisclosure Act in the process of asking about an employee's exposure.

An exception to this general rule occurs when an employee has been given a conditional job offer but has not yet begun work. In this case, an employer may make any such inquiries as long as it does so for all entering employees in the same job category.

EEOC also has said in its guidance that employers may ask for proof of COVID-19 vaccination because such questions are not considered disability-related under the ADA. But if an employee says they are not vaccinated, an employer might want to be careful about asking the why, because this may result in the employee revealing confidential information about a disability.

Furthermore, policies requiring either verbal confirmation or documentation of vaccination contain medical information, meaning they are still subject to medical confidentiality provisions.

Employees are also protected from being retaliated against for participating in activities like filing a charge related to an employer's vaccination policy or requesting an exemption from the policy. Source 文章來源:


EPIA inc. is a private Insurance Agency with no ties with legal entities. The information contained in this article is based on information provided by the Official Website. Consumer questions on how to proceed with the new guidelines must consult official governmental sources or labor and employment attorneys.

EPIA Inc. 是一家私人保險機構,與實體法律無關。本文中包含的信息基於 官方網站提供的資訊。消費者如有問題關於新的指南,請務必查閱政府官方消息來源或諮詢專業勞工律師。

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