EEOC Says COVID-19 Can Be a Disability Under the ADA

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The U.S. Equal Employment Opportunity Commission (“EEOC”) announced on December 14, 2021, that employees who contract COVID-19 may be protected from discrimination under federal law.  This supplements previously issued guidance addressing when people with “long COVID” may be deemed disabled under the Americans with Disabilities Act (“ADA”).

The EEOC’s new guidance clarifies that a person who contracts the virus that causes COVID-19 can be an individual with a “disability” for purposes of the ADA if they (1) have an “actual” disability, (2) have a “record of” a disability, or (3) are “regarded as” being an individual with a disability.

EEOC Chair Charlotte A. Burrows explained, “Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws the EEOC enforces. Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations.”

Under the new guidance, someone with COVID-19 has an actual disability if their medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.”  Whether a person has an impairment that substantially limits a major life activity requires an individualized assessment.

By way of example, the EEOC explained that someone who has headaches, dizziness, brain fog, and issues with memory and concentration that last for days at a time and are attributable to COVID-19 “is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.”  Other examples of impairments that substantially limit major life activities include difficulty breathing and fatigue (which substantially limit respiratory function) and experiencing heart palpitations, chest pain, and shortness of breath (which substantially limit cardiovascular and circulatory function), where the symptoms last or are expected to last for several months.

Additionally, a person with “long COVID” who suffers from intestinal pain, vomiting, and nausea that lingers for months is substantially limited in their gastrointestinal function and, therefore, is disabled within the meaning of the ADA.  Notably, COVID-19 may be an actual disability even where an individual’s symptoms are intermittent, as long as a major life activity is substantially limited.

Despite the agency’s new guidance, COVID-19 is not always a disability under the ADA.  For example, a person who contracts COVID-19 but is asymptomatic or whose COVID-19 causes only mild symptoms that resolve in a matter of weeks and results in no other consequences would not be entitled to a reasonable accommodation.

Moreover, an employer does not violate the ADA for taking an adverse employment action against an employee or applicant who qualifies as disabled under the ADA on the basis of COVID-19 where the employee or applicant was not qualified for the position at issue or presented a “direct threat” to themself or others in the workplace.  And a person who has a disability within the meaning of the ADA is only entitled to a reasonable accommodation  if their disability requires it and the accommodation does not impose an undue hardship on the employer.

The EEOC’s new guidance expands the universe of individuals who may qualify as being disabled under the ADA.  Contact our employment law team for help conducting individualized assessments to determine whether an employee who has or had COVID-19 is disabled under the EEOC’s new guidance and is eligible for a reasonable accommodation.

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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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