The EEOC has updated guidance clarifying when COVID-19 may comprise a disability under the Americans with Disabilities Act (“ADA”). In a new section of the EEOC’s COVID-19 guidance entitled “COVID-19 and the Definition of ‘Disability’ Under the ADA, Rehabilitation Act, and other EEO Laws,” the EEOC focuses on when COVID-19 is disability under the ADA, and if so, what is the resulting impact on an employer’s obligations under the law.
Importantly, the guidance clarifies that depending on the circumstances, COVID-19 can meet the ADA’s three-part definition of “disability” (i.e., “actual disability”, “record of disability” or being “regarded as an individual with a disability”). If so, just like other individuals with disabilities under the ADA, the employer will be required to protections to applicants and employees. However, much like the analysis in other disability related evaluations, not every individual with COVID-19 will qualify as disabled. Instead, employers must assess each individual on a case-by-case basis.
The ADA’s three-part definition of disability applies to COVID-19 in the same way it applies to any other medical condition. A person can be an individual with a “disability” for purposes of the ADA in one of three ways:
- Actual Disability. The updated guidance primarily focuses on “actual disability,” and when COVID-19 is, or is not, an actual disability under the ADA. Depending on the specific facts involved, “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.'” According to the guidance, “COVID-19 is a physiological condition affecting one or more body systems [and] as a result is a ‘physical or mental impairment’ under the ADA. The key consideration is whether the effects of an individual’s COVID-19 “substantially limit[s] a major life activity.”
An individualized assessment applying existing ADA rules is critical to determining whether the effects of a person’s COVID-19 substantially limit a major life activity. For example, applicants or employees with COVID-19 who are asymptomatic or have mild symptoms (i.e., similar to a common cold or flu) that resolve in a matter of weeks, with no other consequences, will not have an ADA disability, and therefore, will not be eligible for reasonable accommodations under the ADA.
However, situations involving more serious symptoms or “long COVID” (i.e., when an individual experiences a range of new or ongoing symptoms for weeks or months after having COVID-19) may constitute an actual disability and require legal protections be afforded to such individuals. However, one interesting note is that the duration of the limitations from COVID-19 is not a decisive factor in determining whether or not COVID-19 is an actual disability. The guidance explains that the limitations from COVID-19 do not have to last a certain period of time or be long-term to be “substantially limiting.” Even impairments lasting for a short period of time may still be covered if “sufficiently severe.”
- Regarded As Disability. The guidance also provides considerations for employers on the risks of “regarded as” disability claims, where an employee is subjected to an adverse action (i.e., fired or not hired or harassed) because the person has an impairment, such as COVID-19, or the employer mistakenly believes the employee has such an impairment. For example, an employer would regard an employee as having a disability if the employer fires an individual because the employee had symptoms of COVID-19, which, although minor, lasted or were expected to last more than six months.
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.
- Record of Disability. Finally, 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. This definition will generally apply when an individual has a history of a “record of” an actual disability (such as cancer that is in remission).
Further, the guidance reminds us that individuals must meet either the “actual” or “record of” definitions of disability to be eligible for a reasonable accommodation. Individuals who only meet the “regarded as” definition are not entitled to receive reasonable accommodation.
Of course, coverage under the “actual” or “record of” definitions does not, alone, entitle a person to a reasonable accommodation. Individuals are not entitled to an accommodation unless their disability requires it, and an employer is not obligated to provide an accommodation that would pose an undue hardship.
Key Takeaways for Employers:
- Employers should realize that in some cases an employee’s COVID-19 infection may place them in ADA territory, particularly for those with “long” COVID, and therefore, they should be prepared to engage in the interactive process.
- In making that determination, employers should make individualized assessments.
- Mild symptoms or symptoms that last only a short period of time, without any other consequences, will not constitute a disability and afford protections under the ADA. But a more serious reaction to COVID-19 can result in a disability.
- As employers work to implement policies and/or collect information regarding COVID-19 testing and vaccination status, employers should be mindful of this guidance and the ADA requirements.