Is Everyone Who Had COVID-19 Now Disabled Under The ADA?

Vinson & Elkins LLP

Vinson & Elkins LLP

There are still many unknowns when it comes to the long-term health impacts of COVID-19 infections. Although medical studies on these impacts are ongoing, preliminary research indicates that COVID-19 infections may potentially cause a number of physiological and neurological impediments in survivors. These impediments appear to range from the predictable, such as lung damage, to the unexpected, including blood clots, heart problems, and attention or memory impairments. Whether these medical issues will be temporary impediments or persist long-term is subject to continuing study.

One question is, will these impacts qualify affected employees as being disabled under the ADA? The answer will depend in large part on the severity and duration of the post-recovery conditions at issue.

Perhaps a more difficult question for employers will be, what obligations do employers have if they know an employee had COVID-19, but aren’t aware of specific long-term conditions the employee has? An employer may have a duty to accommodate if the employee’s disability is obvious, even if an employee doesn’t request an accommodation. If an employee had COVID-19, is it obvious that the employee may have a persisting health condition? The medical community is still answering that question, and it may be some time before government guidance and courts can address the issue.

What does this mean for an employer who finds that an employee who has historically been a good performer starts missing deadlines or returning sub-par work after their recovery from a COVID-19 infection? Or a field operator is unable to maintain his normal pace? A normally punctual manager begins to miss calls and meetings? We may not be able to ignore or dismiss the possibility that these issues stem from long-term impacts of COVID-19. If that is the case, the issues could trigger the need for an interactive process under the ADA. Employers may need to ask: Is there a physical or mental impairment? Is there a reasonable accommodation that can address it? Can the employee, with or without accommodation, still perform their job?

The EEOC has noted that it is acceptable for employers to provide accommodations on an interim or trial basis, either while waiting on medical documentation or in order to respond to changing government guidance and restrictions. Employers should explore this form of accommodation as an option if and when an employee’s situation is impacted by new medical issues following a COVID-19 infection.

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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