On December 14, the EEOC amended its technical assistance document to add more questions and answers regarding when COVID-19 can qualify as a disability. These questions and answers clarify circumstances in which COVID-19 may or may not cause effects sufficient to meet the definition of a disability for various purposes under the Americans with Disabilities Act (“ADA”).

The new guidance clarifies that whether COVID-19 is an actual disability is a case by case determination. 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. But in the case of Long COVID, where an employee has a certain level of symptoms of COVID-19 for a period of several weeks or months, may be considered an actual disability. But it is a case by case determination. The EEOC guidance provides the following specific examples of when a COVID-19 diagnosis can be considered a disability under the ADA:

• An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.
• An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.
• An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.
• An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA.

In some cases a condition that is worsened by COVID-19 may also constitute a disability. For instance if an employee suffers heart inflammation or a stroke due to COVID-19 then that condition would likely qualify as a disability. Additionally, if an employee had a minor heart condition prior to being infected with COVID-19, but the virus worsened their condition to the point it was substantially limiting it will be considered a disability.

Employers should not discount employee’s requests for reasonable accommodations simply because their claimed disability is related to COVID-19. When an employee meets the definition of a disability, the employer must enter an interactive process to determine whether a reasonable accommodation can be offered to allow the employee to perform their job without creating an under hardship for the employer. When evaluating a request for a reasonable accommodation employers can and generally should request that the employee provide a statement from their treating health care provider that states the nature of the employee’s limitations and recommended accommodations. In California, a form that can be given to the employee for that purpose can be found here. We encourage employers to reach out to their legal counsel when they are decerning whether COVID-19 is a disability for a particular employee and to assist in evaluating possible accommodations. As you can see from the examples above, these inquires can be very fact specific.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying with the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you are in the process of reopening or you have been conducting business and want to make sure you are in compliance with the applicable industry guidelines.