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EEOC Updates Guidance on COVID-19 as a Disability Under the ADA

on Friday, 31 December 2021 in Labor & Employment Law Update: Sarah M. Huyck, Editor

On December 14, 2021, the Equal Employment Opportunity Commission (“EEOC”) released updated guidance addressing protections under the Americans with Disabilities Act (“ADA”) for workers who contract COVID-19.  At the outset of the pandemic, the EEOC first issued its guidance document, “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws” and has continued to update it as the legal and medical landscape continues to shift.  The newest addition to EEOC’s guidance addresses COVID-19 as a disability under the ADA.  This recent update tracks previously-existing disability guidance and analysis, but the EEOC’s guidance is helpful for employers navigating COVID-19 in the workplace.

Defining “Disability” Under the ADA

The ADA has a three-part definition of “disability” that applies to COVID-19 in the same way as any other medical condition.  To be covered under the ADA, an individual may:

  1. Have an “actual” disability.
  2. Have a “record of” a disability.
  3. Be “regarded as” an individual with a disability.

Actual Disability

An “actual” disability is defined as a person having a “physical or mental impairment that substantially limits a major life activity.”  In some cases, the EEOC states that COVID-19 may be an actual disability under the ADA when all requirements are met under the ADA definition. 

Specifically, the EEOC notes that COVID-19 may affect major life activities because:
(1) COVID-19 can affect major bodily functions, like immune system or respiratory functions, and (2) COVID-19 can affect major life activities like eating, walking, breathing, concentrating, or interacting with others.  Further, the EEOC’s guidance states that COVID-19 limitations do not have to be long-term or “last any particular length of time” to qualify under the ADA.  Even if COVID-19 symptoms come and go, COVID-19 may qualify as an actual disability if it substantially limits a major life activity when active.

Record of Disability

The EEOC guidance also states that an individual who has or had COVID-19 can qualify under the ADA as a person with a “record of” a disability.  This occurs where a person has “a history of, or has been misclassified as having” an impairment substantially limiting one or more major life activities.

“Regarded as” an Individual with a Disability

Individuals who are “regarded as” an individual with a disability related to COVID-19 may also be protected under the ADA under certain circumstances.  “A person is ‘regarded as’ an individual with a disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19, or the employer mistakenly believes the person has such an impairment, unless the actual or perceived impairment is both transitory (lasting or expected to last six months or less) and minor.”

The EEOC specifically notes that an employer’s adverse employment action against a person “regarded as” disabled would not violate the ADA if:

  1. The individual is not qualified for the job held or desired; or
  2. The individual poses a “direct threat” in the workplace due to the significant risk of harm to the health of others.

Individualized Determinations

The EEOC made clear that individual assessments are required when determining whether a specific employee’s COVID-19 is considered a disability under the ADA.  Not every employee diagnosed with COVID-19 will qualify.  For example, an employee with COVID-19 who is asymptomatic or who experiences mild cold- or flu-like symptoms would likely not be covered under the ADA’s definitions as having an “actual” or “record of” disability.[1]

The EEOC lists four (4) specific examples of when employees with COVID-19 may be entitled to ADA protections:

  1. An individual with COVID-19 who experiences ongoing but intermittent headaches, brain fog, and difficulty concentrating which is attributed to the virus.
  2. An individual with COVID-19 who initially received supplemental oxygen for breathing difficulties and continues to experience fatigue or shortness of breath.
  3. An individual with COVID-19 who experiences lasting cardiovascular limitations, which may include heart palpitations, chest pain, and shortness of breath due to the virus.
  4. An individual diagnosed with “long COVID” who experiences COVID-19 related pain or symptoms that linger for many months [2].

The EEOC also stated that a condition caused or worsened by COVID-19 may be a disability.  For example, an individual with a heart condition which substantially worsens after COVID-19 infection may qualify under the ADA. 

Reasonable Accommodations

Reasonable accommodations for employees with COVID-19 related disabilities follow the same framework as any other employment accommodation under the ADA.  Individuals with “actual” or a “record of” COVID-19 disability may be entitled to an accommodation if their disability requires it.  However, employers are not obligated to provide an accommodation if it would impose an undue hardship (i.e., a significant difficult or expense).

When an employee requests a reasonable accommodation related to COVID-19 under the ADA, employers may ask for reasonable documentation about the disability and/or the need for reasonable accommodation.  This typically includes information about the individual’s diagnosis, any restrictions or limitations, and about the effectiveness of potential alternative accommodations.

While the EEOC’s updated guidance is helpful, there are still practical challenges in place particularly for employers navigating individualized assessments required by the ADA. 

[1] Notably, an asymptomatic individual “regarded as” having a disability could still bring suit under the ADA.  A person is “regarded as” an individual with a disability if they are subject to adverse employment action because of an impairment (like COVID-19) or the employer’s mistaken belief or perception of an impairment.  For example, an employer may violate the ADA by preventing an employee from returning to the workplace after a COVID-19 infection (when the employee is no longer infectious and medically able to return) based on rumors or stereotypes about the employee’s condition.

[2] The EEOC guidance document refers readers to the Justice Department and Department of Health and Human Services’ guidance for “long COVID” found here.

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