Despite the decline in positive COVID-19 cases, employers should remain aware of their ongoing obligations to employees impacted by the virus. According to guidance issued by the Equal Employment Opportunity Commission, COVID-19 may qualify as a disability under the ADA. COVID may qualify as a disability because it:
- Is a physical or mental impairment — i.e., it can result in emotional or mental health conditions and damage organs and respiratory, nervous, circulatory or cardiovascular systems; and,
- Can substantially limit major life activities, which include concentrating, breathing, working, and the functioning of organs or bodily systems.
To determine if COVID-19 is a disability under the ADA, employers should use same inquiry they apply to other known disabilities and medical contraindications. That is, an individual with COVID-19 “has an actual disability if the person’s medical condition or any or its symptoms is a ‘physical or mental’ impairment that ‘substantially limits one or more major life activities.’” Because COVID-19 impacts everyone differently, employers must conduct an “individualized assessment” to determine the degree of its impact on a particular employee.
Per the EEOC guidance, “a person 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.” However, employees experiencing “long COVID” symptoms such as “multiple-day headaches, dizziness, brain fog, and difficultly remembering or concentrating”; breathing difficulties or shortness of breath; heart palpitations or chest pain; or COVID-19 related intestinal pain, vomiting, and nausea, may be disabled for purposes of the ADA. Employers must also note, even if an employee’s COVID-19 symptoms come and go, “COVID-19 is an actual disability if it substantially limits a major life activity when active.”
Considerations and best practices for employers
As a reminder, employers are only required to accommodate an employee’s known disability. In other words, before an employer’s duty to provide a reasonable accommodation is triggered under the ADA, the employee must make an adequate request or the employer must otherwise have knowledge sufficient to put the employer on notice of a potential issue implicating the ADA. In either instance, the parties must engage in an interactive process to identify potential accommodations. However, while employers are legally obligated to engage in the interactive process, they do not have to provide an accommodation if it is unreasonable or if doing so would impose an undue hardship on the operations of its business.
Notwithstanding the above guidance, employers should expect to see litigation over these issues in the coming months. It’s unclear if courts will “defer to the Departments’ administrative position” or decline to treat long COVID symptoms as a disability under the ADA. For now, it is best practice to take COVID-19 requests for accommodation seriously and engage in a good faith interactive process with all employees seeking an accommodation.
