The Americans with Disabilities Act (“ADA”) provides certain protections for employees and applicants with a “disability,” as defined by the ADA. The ADA defines a “disability” to include:

• An actual disability, meaning a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing or hearing);
• A history or record of an actual disability (such as cancer that is in remission); or
• An employer’s perception that an individual has a disability, based on either an actual impairment or an employer’s mistaken belief that the individual has an impairment, such that the individual is “regarded as” having a disability by the employer, unless the actual or perceived impairment is objectively both transitory (lasting or expected to last six months or less) and minor. Whether the actual or perceived impairment substantially limits a major life activity is irrelevant in this context.

In the midst of the COVID-19 pandemic, a common question from employers has been: Does COVID-19 qualify as a “disability” under the ADA, such that an employee or applicant who contracts COVID-19 is entitled to invoke the protections of the ADA? In December 2021, the Equal Employment Opportunity Commission updated its COVID-19 guidance to specifically address this issue. The short answer is: Maybe.

To the extent either was in question, the EEOC confirmed that (1) COVID-19 is a physical or mental impairment, and (2) COVID-19, like any other medical condition, may qualify as a covered disability by satisfying any 1 of the 3 prongs of the traditional definition of disability outlined above.

The EEOC guidance reinforces that the disability determination must always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances—this is no different because the medical condition at issue is COVID-19. As an aid to employers when undertaking this individualized assessment in the context of COVID-19, the EEOC offers examples of factual circumstances where COVID-19 might and might not qualify as a covered disability.

Actual Disability

According to the EEOC Guidance, COVID-19 will be deemed an actual disability in each of the following circumstances:

• The individual experiences ongoing, but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, as a result of COVID-19, which limits the individual’s neurological and brain function, concentration, and/or thinking, among other major life activities.
• The individual initially received supplemental oxygen for breathing difficulties and still has shortness of breath, fatigue, and other virus-related effects that are expected to last or do last for several months, which limit the individual’s respiratory function, and possibly activities involving exertion, such as walking.
• The individual experiences heart palpitations, chest pain, shortness of breath, and related effects that are expected to last or do last for several months, which limits the individual’s cardiovascular and circulatory functions, among others.

Not all cases of COVID-19 will give rise to a disability determination. A person with COVID-19 who is asymptomatic or only has mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks does not qualify as someone with an actual disability under the ADA. By way of example:

• An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.
• An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.

Importantly, even if an initial case of COVID-19 does not qualify as a disability, it is possible for COVID-19 to cause a new, or exacerbate an existing, medical condition that itself is a disability. The EEOC provides the following examples:

• The individual develops heart inflammation as a result of COVID-19, which substantially limits the individual’s circulatory function or ability to lift anything.
• The individual suffered an acute ischemic stroke while the individual had COVID-19, which substantially limits the individual’s neurological and brain function.
• The individual develops diabetes attributed to COVID-19, and, as a result, is limited in the endocrine function.
• An individual’s pre-existing heart condition, which previously did not substantially limit a major life activity, worsens with COVID-19 and now limits the individual’s circulatory function.

“Record of” Disability

The EEOC confirmed that an individual with COVID-19 can support a “record of” a disability, as is the case with any other medical condition, provided the individual meets the standard outlined above. The EEOC did not elaborate or otherwise provide examples of how this prong of the disability definition might be uniquely applied to a COVID-19 fact pattern.

“Regarded as” Disability

After reiterating that an employer can “regard as” disabled an individual with COVID-19, the EEOC offered two sets of factual circumstances exemplifying such a “regarded as” claim. In particular, the EEOC notes that under both examples, the employer would be unable to demonstrate that the impairment was objectively both transitory and minor:

• The employer terminates the individual because the individual had minor symptoms of COVID-19, which lasted or were expected to last more than six months.
• The employer terminates the individual because the individual has COVID-19, which lasted or was expected to last less than six months, but caused non-minor symptoms.

In sum, employers need to conduct an individualized assessment of whether an applicant or employee with COVID-19, or who suffers from effects of COVID-19, qualifies as an individual with a “disability” under the ADA.