EEOC Releases Guidance on When COVID-19 May Be Considered a Disability Under the ADA

Dunlap Bennett & Ludwig PLLC

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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