The Equal Opportunity Employment Commission (“EEOC”) recently released guidance (What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws) addressing when COVID-19 might be considered a disability under the Americans with Disabilities Act (“ADA”).

Under the ADA, a person is considered disabled if the individual’s medical condition results in a physical or mental impairment that substantially limits a major life activity. The guidance clarifies that whether an individual with COVID-19 has a disability is dependent on the specific facts of that individual’s condition, as COVID-19 affects everyone differently. According to the EEOC, “[d]etermining whether a specific employee’s COVID-19 is an actual disability always requires an individualized assessment, and such assessments cannot be made categorically.”  

The EEOC stated that a person infected with the virus causing COVID-19 who is asymptomatic or who has mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—do not have an actual disability under the ADA. On the other hand, those with “long COVID” who are experiencing COVID-19 symptoms such as headaches, chest pain, heart palpitations, shortness of breath, fatigue, and intestinal issues may be disabled under the ADA if any of these symptoms substantially limit a major life activity.

Employers should assess whether COVID-19 substantially limits a major life activity without taking into account any mitigating measures—i.e., any medical treatment received or other measures used to lessen or prevent symptoms. However, in determining whether COVID-19 substantially limits a major life activity, any negative side effects of a mitigating measure should be taken into account.

In addition to clarifying that employers must make individualized assessments to determine whether individuals with COVID-19 have a disability, the EEOC further reminded employers of their obligation to engage in the interactive process and provide reasonable accommodations when necessary.