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EEOC Releases Detailed Guidance on COVID-19 as a Disability

On December 10, 2021 the EEOC released detailed guidance regarding whether and when COVID-19 is considered a disability.

COVID as an “Actual Disability”

Under the guidance, an individual with COVID-19 has an actual disability if the person’s medical condition or its symptoms is a physical or mental impairment that substantially limits one or more major life activities. Analysis of this standard will depend on the specific facts of each case and require an individualized assessment. Not all cases of COVID-19 will be considered an actual disability under the Americans with Disabilities Act (ADA); if the individual only has mild symptoms (like that of the common cold or flu) that resolve in a few weeks with no other consequences, the condition might not be considered a disability. However, limitations from COVID-19 do not necessarily need to last any particular length of time to be substantially limiting.

Whether COVID-19 substantially limits a major life activity is determined based on how limited the individual would have been without the benefit of any mitigating measure (i.e., any medical treatment received or other step used to lessen or prevent symptoms or other negative effects of an impairment). At the same time, in determining whether COVID-19 substantially limits a major life activity, any negative side effects of a mitigating measure are taken into account. Some examples of mitigating measures for COVID-19 include medication or medical devices or treatments, such as antiviral drugs, supplemental oxygen, inhaled steroids and other asthma-related medicines, breathing exercises and respiratory therapy, physical or occupational therapy, or other steps to address complications of COVID-19.

Even if the symptoms related to COVID-19 come and go, COVID-19 can be considered an actual disability if it substantially limits a major life activity when active. The EEOC provided the following examples of individuals with impairments that substantially limit a major life activity:

  • 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 diagnosed with COVID-19 who 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; and

  • An individual diagnosed with “long COVID-19” 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.

Examples of individuals with an impairment that does not substantially limit a major life activity include:

  • An individual diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort that 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

  • An individual who is infected with the virus causing COVID-19 but is asymptomatic and experiences no symptoms or effects.

A condition caused or worsened by COVID-19 may also be considered a disability under the ADA, such as:

  • Heart inflammation substantializing limiting circulatory function;

  • A stroke suffered during COVID-19 that impacts brain function; and

  • An individual who develops diabetes after having COVID-19, which is attributed to COVID-19.

“‘Record of’ Disability”

Depending on the facts and circumstances, a person who has or had COVID-19 can be an individual with a “record of” a disability 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 an individualized assessment.

“‘Regarded As’ Disability”

Also depending on the facts, if an individual is subjected to an adverse action because the person has an impairment, such as COVID-19, or the employer mistakenly believes the person has such an impairment, the individual is regarded as disabled unless the actual or perceived impairment is objectively transitory (lasting or expected to last six months or less) and minor.

Reasonable Accommodations

The EEOC reminds employers that individuals who have an actual disability or a record of one may be entitled to reasonable accommodations unless the accommodation would create an undue hardship for the employer. In evaluating accommodation requests, an employer may require supporting medical information regarding the need for the accommodation. Further, an employer may choose to provide accommodations beyond what the ADA requires. Such accommodations may include schedule changes, physical modifications to the workplace, telework, or special or modified equipment.

Finally, the EEOC highlights to employers that the ADA’s requirements about disability-related inquiries and medical exams, medical confidentiality, retaliation, and interference apply to all applicants and employees, regardless of whether they have a condition that is considered a disability under the ADA. However, in order to challenge employment decisions based on disability, denial of a reasonable accommodation request, or disability-based harassment, an individual must have a “disability” as defined by the ADA.

This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.