On December 14, 2021, The Equal Employment Opportunity Commission updated its guidance to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act.
According to the EEOC, someone who has had COVID-19 can be someone with an “actual disability”; having a “record of” a disability; or “regarded as” an individual with a disability. Each situation should be evaluated independently as not all COVID-19 diagnoses will meet the ADA’s definition of “disability”. The EEOC’s guidance includes the following:
- A person with COVID-19 has an “actual disability” if the affects from the virus or its symptoms presents a “physical or mental” impairment that “substantially limits one or more major life activities”. For example, a person diagnosed with COVID-19 who experiences ongoing, yet intermittent, headaches, dizziness, and difficulty remembering or concentrating is considered substantially limited in neurologic and brain function, and therefore regarded as someone with an “actual disability”.
- An individual who has since recovered from COVID-19, but while diagnosed with COVID-19 met the ADA’s definition of a person with an “actual disability”, may be considered someone with a “record of” a disability, depending on the facts.
- Depending on the facts, a person may be “regarded as” someone with a disability if the person is subjected to adverse employment action because the person either actually has COVID-19, or the employer mistakenly believes the person has COVID-19, unless the actual or believed diagnosis is objectively both transitory (6 months or less) and minor. For example, an employee who is fired because the employer thought she had minor COVID-19 symptoms that would last more than 6 months could qualify for ADA protection. The ADA would no be triggered if the employee is not qualified for the job held or desired or the individual poses a “direct threat” to the workplace due to the significant harm to the health of others.
The EEOC further advised that in some cases, a medical condition, either caused or worsened by COVID-19, may be a disability under the ADA.
Additionally, in order to be entitled to a reasonable accommodation, employees must meet either the “actual” or “record of” definitions of disability. Meeting those definitions alone does not entitle a person to a reasonable accommodation; the disability must require the accommodation and the employer is not obligated to provide an accommodation that would pose and undue hardship.
In sum, the EEOC’s updated guidance is a reminder to employers to undertake an individualized analysis when engaging in the interactive process under the ADA.