On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) released guidance that workers with disabilities stemming from COVID-19 are protected from discrimination under the Americans with Disabilities Act (ADA) and may be eligible for reasonable accommodations. This guidance expands upon the EEOC’s September 2021 update that workers suffering from “long-haul” COVID-19 may be disabled under the ADA “in certain circumstances,” as well as the July 2021 joint guidance issued by the U.S. Department of Health Human Services (HHS) and U.S. Department of Justice that “long COVID” could classify as a disability.
Depending on the employee’s symptoms and circumstances, a COVID-19 infection could meet the definition of a “disability” under the ADA. The determination of whether a specific employee’s COVID-19 is an actual disability (meaning a physical or mental impairment that substantially limits a major life activity) requires an individual assessment that cannot be made categorically. COVID-19 may substantially limit a major life activity in some circumstances or for some individuals, while other individuals are asymptomatic or experience only mild symptoms.
For employees who are asymptomatic or who experience only mild symptoms similar to the common cold or flu (such as congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort) that resolve in a matter of weeks, COVID-19 does not “substantially limit a major life activity” for purposes of the ADA. Their COVID-19 will not be considered a disability or require the employer to provide any accommodations.
However, based on an individualized assessment, some employees may experience COVID-19 symptoms (even if the symptoms occur intermittently) that will be deemed to substantially limit a major life activity when active. For example:
- 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 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.
Similarly, for some cases, an individual’s initial case of COVID-19 may not constitute an actual disability, but may end up causing impairments that are themselves disabilities under the ADA or may worsen a pre-existing condition to be substantially limiting. For example:
- An individual who had COVID-19 develops heart inflammation. This inflammation itself may be an impairment that substantially limits a major bodily function, such as the circulatory function, or other major life activity, such as lifting.
- An individual initially has a heart condition that is not substantially limiting. The individual is infected with COVID-19. The COVID-19 worsens the person’s heart condition so that the condition now substantially limits the person’s circulatory function.
There are also situations in which an employer might “regard” an employee with COVID-19 as an individual with a disability, making an adverse action taken against the employee discriminatory and unlawful. A person is “regarded as” an individual with a disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19, or the employer mistakenly believes the person has such an impairment, unless the actual or perceived impairment is objectively both transitory (lasting or expected to last six months or less) and minor. For this definition of disability, whether the actual or perceived impairment substantially limits or is perceived to substantially limit a major life activity is irrelevant. For example:
- An employer may regard an employee as having a disability if the employer fires the individual for having COVID-19, and the COVID-19 (although lasting or expected to last less than six months) caused non-minor symptoms. The employer could not show that the impairment was both transitory and minor.
When an employee has a disability, or is regarded as having a disability, due to COVID-19, the employer should engage in a good-faith, interactive process to determine if it can provide a reasonable accommodation without creating an undue hardship on the business. A reasonable accommodation may include a schedule change, physical modifications to the workplace, telework, or special or modified equipment. An employer may request the employee provide reasonable documentation about the disability and/or need for reasonable accommodation. If the employee does not provide the necessary documentation, or if the requested accommodation would cause an undue hardship, the employer may lawfully deny the request.
For more information on the new EEOC guidance or for questions regarding COVID-19 disability accommodations for employees, please contact BurnsBarton.
