As Williams Mullen has previously reported here throughout the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has been active in providing guidance to covered employers through its publication, “What you Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws" (Technical Guidance Document).  On December 14, 2021, the EEOC finally provided guidance on several hot topic issues involving COVID-19 as to whether COVID-19 is a disability under either or both of the ADA and the Rehabilitation Act, and what obligations an employer has to those who have COVID-19 by adding a Section N to the Technical Guidance Document.

Not surprisingly, the EEOC in Section N.1 has advised that, yes, a person with COVID-19 can be either (1) a person with an actual disability under the ADA, (2) a person who has a record of having a disability under the ADA, or (3) a person who is regarded by the employer as having a disability under the ADA.  In all three circumstances the ADA protects such an employee from adverse job actions taken by the employer. 

In addressing when COVID-19 would be an actual disability under the ADA, the EEOC noted in Sections N.2 and 4, that depending on the specific circumstances, a person with COVID-19 may have an actual disability when he or she has conditions, such as ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, that the employee’s doctor attributes to the virus, and such conditions affect a major life activity.  Employees who have COVID-19 and who initially receive supplemental oxygen for breathing difficulties and then have shortness of breath, associated fatigue and other virus effects that last, or are expected to last, for several months will likely have an actual disability. Next, employees diagnosed with COVID-19 who experience heart palpitations, chest pain, shortness of breath, associated fatigue, etc. that last, or are expected to last, for several months will also likely have an actual disability.  Those employees with “long COVID” will also have an actual disability.  Finally, those employees who have a condition caused or worsened by COVID-19 will also likely have an actual disability.

The new guidance states that those who are diagnosed with COVID-19 and who are asymptomatic or who simply experience standard COVID-19 symptoms that resolve themselves within several weeks are not individuals with a disability because the condition does not substantially limit a major life activity.

The Technical Guidance Document makes clear that the standard ADA rules apply when determining whether a person has a record of a disability or is regarded as having a disability by his or her employer.  Further, employers have a right to seek medical documentation when employees seek a reasonable accommodation under the ADA based on a COVID-19 diagnosis.

As this area of the law continues to evolve, it would behoove employers to work with experienced counsel on these matters.