On Tuesday, the Equal Employment Opportunity Commission released guidance officially confirming that the Americans with Disabilities Act’s three-part definition of disability applies to COVID-19 in the same way that it applies to any other medical condition. The three-part definition of disability comprises of:

• an actual disability, meaning a physical or mental impairment that substantially limits a major life activity;
• a record of a disability, meaning the person has a history or record of an actual disability; or
• being regarded as disabled, meaning the employer believes the individual has a disability, whether that condition qualifies as a disability or not (unless the impairment is transitory and minor).

Previously, the EEOC had issued a notice that simply stated it agreed with another government agency’s guidance that long COVID – a condition in which a person with COVID experiences lingering symptoms or health issues for weeks or months after first being infected —  could cause physical or mental impairment, and the EEOC said it would issue technical assistance in the coming weeks. The technical assistance issued on December 14 now provides clearer guidance for analyzing COVID-19 under the ADA.

Disability to be confirmed by case-by-case assessment

The guidance affirms that whether an individual with COVID-19 has a disability is dependent on the specific facts of that individual’s condition, as COVID-19 does not affect every individual the same way. This means employers should make COVID-19 disability assessments on a case-by-case basis. An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity.

The guidance provides an example of when COVID-19 will not be considered an actual disability. A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA.

On the other hand, the duration of an employee’s illness is not dispositive. The limitations from COVID-19 do not necessarily have to last any particular length of time to be substantially limiting. They also need not be long-term. The guidance provides a couple of examples. If a lifting restriction lasts or is expected to last several months, the impairment is substantially limiting. By contrast, impairments that only last a short period of time are typically not covered, although they may be if they are sufficiently severe.

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 step used to lessen or prevent symptoms or other negative effects of an impairment. At the same time, in determining whether COVID-19 substantially limits a major life activity, any negative side effects of a mitigating measure should be taken into account.

The EEOC reminds employers that even episodic symptoms related to COVID-19 can be consider an actual disability so long as the symptoms are substantially limiting when active.

Disabilities caused or worsened by COVID

Employers should remember that COVID-19 can cause or worsen conditions, and those conditions may constitute disabilities under the ADA. In some cases, regardless of whether an individual’s initial case of COVID-19 itself constitutes an actual disability, an individual’s COVID-19 may end up causing impairments that are themselves disabilities under the ADA. For example, during the course of COVID-19, suppose an individual suffers an acute ischemic stroke. Due to the stroke, the individual may be substantially limited in neurological and brain (or cerebrovascular) function. In some cases, an individual’s COVID-19 may also worsen the individual’s pre-existing condition that was not previously substantially limiting, making that impairment now substantially limiting.

Important reminders for employers

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.

Employers should carefully review the EEOC’s technical guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”