December 28, 2021Client Alert

EEOC Releases Guidance on When COVID-19 is a Disability under the Americans with Disabilities Act

On December 14, 2021, the Equal Employment Opportunity Commission (the “EEOC”) updated its COVID-19 Technical Assistance Guidance to confirm that COVID-19 or a post-COVID-19 condition may sometimes qualify as a disability under the Americans with Disabilities Act (the “ADA”).

The guidance explains that COVID-19 can meet any of the three definitions of “disability” under the ADA (i.e., having an “actual” disability, having a “record of” a disability, or being “regarded as” an individual with a disability), depending on the facts of each situation. However, not every applicant or employee with COVID-19 meets the definition of disability. Each situation must be looked at using the ADA’s case-by-case approach to determine if an applicant’s or employee’s condition meets one of the definitions of disability.

Actual Disability

An employer must conduct an individualized assessment of an applicant or employee with COVID-19 to determine whether the effects of that individual’s COVID-19 diagnosis constitute an actual disability. According to the guidance, “a person with COVID-19 has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.’” The EEOC explains that, because “COVID-19 is a physiological condition affecting one or more body systems,” it is a “physical or mental impairment” under the ADA. The analysis comes down to whether COVID-19 substantially limits one or more of a person’s major life activities, like major bodily functions, caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others. When looking at the “substantially limits” aspect of the analysis, it should be construed broadly, meaning that COVID-19 does not need to prevent or severely restrict an individual from performing a major life activity to be considered substantially limiting. Further, negative side effects of a mitigating measure (such as medication, medical devices, respiratory therapy, or other methods used to reduce COVID-19 symptoms) should be taken into account when determining whether COVID-19 substantially limits a major life activity.

The EEOC guidance provides examples of when an individual’s COVID-19 diagnosis may or may not substantially limit a major life activity. For example, 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.” However, an individual who has a COVID-19 diagnosis who “experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.”

Record of Having a Disability

An applicant or employee who has or had COVID-19 can also be an individual with a “record of” a disability depending on the circumstances, for example, if the person has a history of, or has been misclassified as having, an impairment that substantially limits one or more major life activities, based on the employer’s assessment.

Regarded as Having a Disability

An applicant or employee who has or had COVID-19 can also be “regarded as” having a disability depending on the facts, for example, if the person experienced an adverse employment action because either they have COVID-19 or the employer mistakenly believes they have COVID-19, unless the actual or perceived impairment is objectively both transitory (i.e., lasting six months or less) and minor.

However, even with that being said, an employer does not automatically violate the ADA when the employer takes adverse action against a person with COVID-19. For example, an individual still needs to be qualified for the job. Further, in some instances, the “direct threat” defense under the ADA might permit the employer to require an employee with COVID-19 or its symptoms to stay home from work “due to the significant risk of substantial harm to the health of others.”

Other Considerations

Employers should note that in some cases, regardless of whether an individual’s initial COVID-19 diagnosis itself constitutes an actual disability, the initial diagnosis could cause other impairments, which may be disabilities under the ADA. For example, an individual who has COVID-19 and develops heart inflammation or suffers a stroke while battling COVID-19. A COVID-19 diagnosis may also worsen an individual’s pre-existing condition that was not previously substantially limiting but becomes substantially limiting because of COVID-19.

Regarding requests for reasonable accommodations, employers should also be aware that individuals still must establish coverage under one of the definitions of disability to be eligible for a reasonable accommodation. If an individual does request a reasonable accommodation related to COVID-19 under the ADA, employers are permitted to ask the employee to provide documentation about the disability and/or needed accommodation. However, an employer is not required to accommodate an employee who does not have an ADA-covered disability.

With the release of this updated guidance, employers should remember to always conduct an individualized assessment of an individual’s specific circumstances related to COVID-19 and whether it constitutes a disability under the ADA.

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