The End of an (Covid) Era?

May 2023 is a significant month as it relates to Covid. On May11, 2023, the federal Covid-19 Public Health Emergency ended. Does this mean employers can wholesale eradicate or deconstruct the variety of Covid protocols that have developed? The answer is not necessarily, but maybe depending on the locations of employees.

States, cities and municipalities have implemented their own rules and guidance on a wide ranging set of Covid topics such as notice to public health officials, notice to other employees, Covid sick pay, and a variety of other topics, some of which may remain in effect beyond the expiration of the federal Public Health Emergency. For example, Philadelphia enacted a Covid sick time requirement for employers of a certain size. Philadelphia’s Public Health Emergency Leave remains in effect until December 31, 2023 and requires employers with 25 or more employees to provide up to 40 hours of paid leave to employees who need to take time off work because of COVID related reasons. Similarly, California, through its COVID-19 Prevention – Non-Emergency Regulation issued by Cal/OSHA, has a variety of COVID related requirements that remain in effect beyond the expiration of the federal Public Health Emergency.

Reasonable accommodations, determined during Covid, could also remain viable. On Monday, May 15, 2023, the Equal Employment Opportunity Commission released updated guidance to address how the end of the federal Covid-19 public health emergency impacts the ADA, the Rehabilitation Act and other EEO laws. 
 
Key components include:

• Employers cannot automatically terminate previously agreed upon reasonable accommodations, but employers can consult with the employee to determine whether the need continues.
• The EEOC provides examples of no cost or low cost reasonable accommodations for long Covid such as a quiet workspace, uninterrupted worktime, noise cancelling devices and other specified examples.
• Notably, the EEOC continues to provide that a flexible schedule or telework remains a possible necessary accommodation for long Covid. 
• Employers should follow the CDC guidelines about asking whether an employee is suffering from Covid, has Covid-related symptoms, and if so, how long the employee should isolate.

Although the federal Public Health Emergency ended, employers are wise to consider where its employees are located. This could require a careful analysis if the employer now has more remote workers.  Employers should also consider whether past reasonable accommodations are rooted in Covid related issues before making abrupt changes to the systems and protocols set-up to address Covid-related employment impacts. Additionally, maintaining certain policies and protocols may help should we be faced with another pandemic event in the future. Workplace Solutions lawyers are here to help you navigate through the process of determining the best course for your business.

If you have questions about this topic, please contact Catherine Strauss or any member of our Workplace Solutions team at Ice Miller.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.