When Is COVID-19 a Disability? The EEOC Speaks

By Fiona W. Ong - Shawe Rosenthal LLP

December 14, 2021

A COVID-19 infection, in and of itself, is not necessarily a disability that triggers employee rights under the Americans with Disabilities Act – but there are circumstances when it can be, including for individuals experiencing long-term symptoms of COVID-19 (a condition with many names, such as “long COVID,” “post-COVID,” “long-haul COVID,” “post-acute COVID-19,” “long-term effects of COVID,” or “chronic COVID”). The EEOC has now updated its COVID-19 Guidance to provide clarification on this issue for employers.

As we discussed previously, the Health and Human Service’s Office of Civil Rights and the Department of Justice previously issued joint guidance asserting that the physical or mental impairments caused by long COVID (the simplest and our preferred reference) may be disabilities under the ADA and other federal disability laws, if they substantially limit one or more major life activities. While the EEOC agrees with this position, it offers a broader perspective on COVID and the ADA.

The EEOC emphasizes that whether COVID is a disability must be assessed on a case by case basis. It constitutes a disability if there is a mental or physical impairment that substantially limits a major life activity, or if there is a record/history of such impairment, or the employee is regarded as having such an impairment.

Actual Impairment. On this aspect of the disability definition, some of the more significant points from the EEOC guidance are as follows:

• An employee who is asymptomatic or has “mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA.”
• Major life activities include both bodily functions and physical activities. The effects of COVID, which are notoriously broad and varied, can impact either or both.
• “Substantially limits” is construed broadly – it does not have to prevent, or significantly or severely restrict, the performance of a major life activity. The limitations do not need to last any particular length of time or be long-term – even short-term limitations are covered if they are sufficiently severe.
• Whether COVID is a disability is assessed without considering the benefit of mitigating measures, although negative side effects of those measures may result in a disability. The EEOC offers some examples of mitigating measures for COVID-19: 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.
• An episodic COVID-related condition constitutes a disability if it substantially limits a major life activity when active.
• COVID can cause or worsen impairments (such as  heart inflammation, stroke, and diabetes) that then constitute disabilities under the ADA.

Rather helpfully, the EEOC provides examples of common COVID conditions that constitute a disability under the ADA:

• An individual experiencing ongoing but intermittent COVID-related multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating.
• An individual 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.
• An individual 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.
• An individual with long COVID who experiences related intestinal pain, vomiting, and nausea that lingers for many months, even if intermittently. The EEOC further refers to the HHS/DOJ guidance for other examples of long COVID.

And on the flip side, the EEOC also provides some obvious examples of common COVID conditions that are not substantially limiting and would not be an ADA disability, even though the employee may be required to isolate during the period of infectiousness per CDC guidance:

• An individual who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort that resolves within several weeks, but experiences no further symptoms or effects .
• An asymptomatic individual.

Regarded as Impaired. There may be circumstances in which an individual may not be actually disabled, but is perceived by the employer as having a COVID-related disability. This constitutes a disability, unless unless the actual or perceived impairment is objectively both transitory (lasting or expected to last six months or less) and minor. The EEOC’s guidance provides some examples:

• An employer fires an employee because they had symptoms of COVID-19, which, although minor, lasted or were expected to last more than six months.
• An employer fires an employee for having COVID-19, and the COVID-19, although lasting or expected to last less than six months, caused non-minor symptoms.

Reasonable Accommodations. The EEOC notes that those with a COVID-related disability are not automatically entitled to a reasonable accommodation. In particular:

• The disability must actually require an accommodation.
• The accommodation may  not pose an undue hardship on the employer.
• Accommodations are available only for actual disabilities, and not for those with a history of COVID or who are “regarded as” disabled because of COVID.
• Employers should follow the normal accommodations process. If the need for accommodation is not obvious, the employer may require medical documentation regarding the individual’s diagnosis and any restrictions or limitations, as well as alternative accommodations. The employer can either require the employee to provide the information from the health care provider or sign a release to allow the employer to get the information directly from the provider. If the requested information is not provided, the employer may deny the accommodation.
• Although not covered in the EEOC’s guidance, we note that if there are multiple accommodation options, the employer may choose the accommodation that will be provided, as long as it is effective. It need not be the most effective option or the employee’s preferred option.
• Employers may always choose to provide more than the ADA requires.
• Possible accommodations include schedule changes, physical modifications to the workplace, telework, or special or modified equipment. The EEOC also directs employers to the previously-existing reasonable accommodations section in its Guidance, as well as the U.S. Department of Labor Blog, Workers with Long COVID-19: You May Be Entitled to Workplace Accommodations.

Not Necessarily Discrimination. Of particular interest, the EEOC makes the point that an employer who takes an adverse employment action (e.g. firing or placing them on unpaid leave) an employee for having COVID doesn’t necessarily violate the ADA. As the EEOC notes, in order to be protected by the ADA, the employee must be qualified to perform the job in question. In addition, an employee can be barred from coming into the workplace if they pose a direct threat to others during the infectious period. With regard to this point, however, the EEOC emphasizes that employers should not rely on on “myths, fears, or stereotypes about a condition … once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.”

Protections for All Employees. The EEOC also notes 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 an ADA disability.”