COVID has directly impacted the workplace more than anything since computers started popping up on desks in the early 90’s. Whether it is the new normal of working remotely, that no one comes to the office with even a case of the sniffles, the inability to find enough employees, or the impact on wages and inflation, the world of work is different. While everyone hopes COVID continues its apparent track of milder symptoms as it mutates, no one knows what the future holds. But just as COVID mutates, the law around it continues to change and develop. Here are three recent COVID related employment law issues to be aware of.

On July 12, 2022, the EEOC updated its Technical Assistance Questions and Answers primarily in the area of COVID testing in the workplace. The new guidance no longer considers the early ubiquitous employer COVID testing as automatically ok under the ADA’s strictures on medical testing of employees. Instead, it instructs employers that each will need to analyze many factors from COVID rates in the community to the physical aspects of the workspace in determining if testing is job related and consistent with business necessity. Employers who are still testing need to review the new guidance and adjust their programs accordingly.

Since the enactment of the ADA, employers understood temporary illnesses were not disabilities. Disabilities were either permanent or long-term conditions. When Congress amended the ADA in 2008, no one understood that the amendments as changing this bedrock principle. Unfortunately, the amended definitions of “disability” were not so clear. As a result, employees are now bringing suits under the ADA based on cases of COVID, that serious, wholly resolved in two weeks. Many courts have allowed these cases to move past a motion to dismiss. This is because the ADA’s amended definition of an actual disability no longer takes the longevity of a condition into account. The import of these cases is that enforcing attendance rules on employees absent for COVID could require an ADA reasonable accommodation analysis.

Despite the striking down of its vaccine mandate, OSHA has not stopped its march toward regulating workplace risks caused by COVID. At the end of June 2022, it announced it was extending its National Emphasis Program on healthcare and skilled nursing facilities that treat COVID patients. It is also in the process of creating a new safety standard focused on COVID in the healthcare industry. After that, it plans on looking at standards more broadly related to infectious diseases. Employers in these industries need to be on their toes.

About the Author...

Edward F. Harold
Fisher Phillips LLP
Labor & Employment Law Committee Chair