EEOC Issues Guidance on When COVID-19 Becomes a Disability Under Federal Law

  1. Employment Law
  2. EEOC Issues Guidance on When COVID-19 Becomes a Disability Under Federal Law

In December 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its technical assistance to add Section N. This new section attempts to clarify its previous guidance on when COVID-19 may constitute a disability under the American with Disabilities Act (ADA) and the Rehabilitation Act.

For the purposes of reasonable accommodations under the ADA, which is one of the most common issues that arises, COVID-19 may constitute a basis for a reasonable accommodation only in some cases. For example, employers must provide reasonable accommodations only if the employee’s COVID-19 diagnosis rises to the level of an actual disability or creates a record of a disability under the ADA.

When COVID-19 Is an Actual Disability Under the ADA

Individuals have actual disabilities under the ADA when their medical conditions or any of their symptoms is a “physical or mental” impairment that “substantially limits one or major life activities.” Whether COVID-19 causes an actual disability in a person depends on a case-by-case examination of their medical circumstances.

COVID-19 does qualify as a physical or mental impairment because it is a physiological condition that affects one or more body systems. Since COVID-19 also may affect major bodily functions, it could substantially limit one or more major life activities. The limitations that COVID-19 causes do not need to be long-term or last for any particular amount of time to be substantially limiting.

Essentially, even if the symptoms of COVID-19 come and go, the condition can be an actual disability under the ADA if it substantially limits a major life activity when active. However, COVID-19 does not always qualify as an actual disability.

When Might COVID-19 Substantially Limit a Major Life Activity?

Various symptoms of COVID-19, whether constant or intermittent, may substantially limit a major life activity. Some examples of when this situation might occur include:

  • Ongoing but intermittent multiple-day headaches, dizziness, and brain fog that substantially limit concentration and other neurological functioning
  • Breathing difficulties, shortness of breath, and fatigue that last or are expected to last for several months and substantial limit respiratory function, walking, and any activities involving exertion
  • Heart palpitations, shortness of breath, and chest pain that substantially limits cardiovascular and circulatory function
  • “Long COVID” diagnosis that involves months-long intestinal pain, vomiting, and nausea, which substantially limits gastrointestinal function
  • COVID-19 worsens or causes an impairment, such as heart inflammation, that constitutes an independent disability under the ADA

Conversely, an entirely asymptomatic individual who experiences cold or flu-type symptoms that resolve after a few weeks would not have COVID-19 as an actual disability.

When COVID-19 Causes an Individual to Have a “Record” of a Disability or to Be “Regarded” as a Person with a Disability

Individuals also may have protections under the ADA if they have a record of a disability or they are regarded as a person with a disability. For example, a person could have a record of a disability stemming from having or having had COVID-19 if they have a history of an impairment that substantially limits one or more major life activities, based on an individual evaluation.

Likewise, having COVID-19 may cause an individual to be regarded as a person with a disability, which qualifies them for ADA coverage. An individual also may be regarded as a person with a disability if their employer mistakenly believes that they have COVID-19. This situation occurs when the person receives some sort of adverse employment action, such as firing or demotion, because of their impairment, which in this case, would be having or being mistakenly perceived as having COVID-19. A person whose COVID-19 symptoms are both transitory and minor, or lasting less than six months, would not be regarded as a person with a disability for purposes of the ADA.

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