[co-author: Brook Buettner]

On December 14, 2021, the EEOC updated its COVID-19 Technical Assistance manual to address when employees who contract COVID-19 are covered under the Americans with Disabilities Act (“ADA”). The ADA generally prohibits discrimination against (1) a person with disability; (2) a person who has a record of impairment; or (3) an employee who is regarded by the covered entity as an individual with a disability. Employers are also required to accommodate qualified individuals with disabilities. There is no obligation to accommodate people based on a record of impairment or who are regarded as disabled.

Under the EEOC guidance, mild cases of COVID-19 are not likely to meet the ADA’s definition of actual disability. According to the EEOC, 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. The guidance explains that when COVID-19 affects major bodily functions, on the other hand, it may rise to a disability. COVID-19 may affect major bodily functions, such as functions of the immune system, special sense organs (such as for smell and taste), digestive, neurological, brain, respiratory, circulatory, or cardiovascular functions, or the operation of an individual organ. In addition, COVID-19 may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others. When it does so, the person may be disabled, depending on how long the impairment lasts. Although there is no bright-line test to determine when an impairment has lasted long enough to be a disability, a few months is often used as a rule of thumb.

Employers should continue to use a case-by-case approach and make individual fact determinations to assess whether an employee’s condition is covered under the ADA. For example, if an employee has a brief and mild case of COVID-19 with no lingering symptoms, the person is likely not considered “disabled” within the meaning of the ADA. It is more likely that a COVID-19 patient who continues to feel the effects for months is “disabled” under the ADA. If the employee does qualify as disabled, then the employer’s next step is to proceed with the reasonable accommodation versus undue hardship analysis and use the interactive process and document the decision whether or not an accommodation is achievable.

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