Is COVID-19 a disability under the ADA?
EEOC: Yes, except for when it’s not.
News regarding COVID-19 is a bit of a mixed bag at the moment. (Now, I am neither a doctor, nor do I play one on TV, but stick with me here). On the one hand, more Americans are testing positive for COVID-19 than at any other time during the pandemic. While on the other hand, it appears that the dominant variant (Omicron) is less likely to cause serious complications when compared to previous variants.
So, what does this mean for employers who are more likely to have their workforce test positive for a less-severe strain of COVID? When does COVID-19 rise to the level of a disability?
Well, good thing our friends at the EEOC released guidance last month on this very topic. In their guidance, the EEOC uses the three-prong definition of disability under the Americans with Disabilities Act (ADA) to address this issue.
- “Actual” Disability – a physical or mental impairment that substantially limits a major life activity.
Per the EEOC’s guidance, a person who contracts COVID-19 is not automatically considered to have a disability. An individual with COVID who is asymptomatic or who is only experiencing mild symptoms, would not be regarded as having a disability because they are not substantially limited in performing a major life activity. However, someone who has been diagnosed as having COVID-19 (or long-COVID), and experiences ongoing headaches, vomiting or shortness of breath, may be substantially limited in a major life activity such as concentrating, walking or gastrointestinal function, and would likely meet the standard for having a disability.
Note: Short-term impairments are not usually covered by the ADA, but they may be covered “if sufficiently severe”.
- “Record of” a Disability – A history or “record of” an actual disability.
The EEOC guidance is short on examples of COVID-19 as a “record of” disability. However, per the Code of Federal Regulations “an employee with an impairment that previously limited, but no longer substantially limits, a major life activity [e.g. complications from COVID-19] may need leave or a schedule change to permit him or her to attend follow-up or ‘monitoring’ appointments”.
- “Regarded as” an Individual with a Disability – Adverse action (e.g. firing, not hiring, or harassing) because of an individual’s impairment or an impairment the employer believes the individual has under this prong, it doesn’t matter whether or not an employee is limited in a major life activity. What does matter is that an employer took adverse action against an employee for an impairment that is either not-transitory (lasting more than 6 months) or non-minor. The EEOC gave the following examples of COVID-19 as a “regarded as” disability:
- Adverse action taken against an employee who had symptoms of COVID-19, which, although minor, lasted or were expected to last more than six months;
- Adverse action taken against an employee with non-minor COVID-19 symptoms, regardless of whether they lasted (or are expected to last) less than six months.
In both instances, an employer could not show that the impairment was both transitory AND minor.
Exceptions: Employers may take action against employees who are no longer qualified for their job. Additionally, due to the ADA’s “direct threat” defense, employers may prevent employees with COVID-19 from entering the workplace during the CDC-recommended period of isolation (that is, as long as they are not relying on “myths, fears, or stereotypes” in their decision-making).
StraightforWARD Legal Advice:
If an employee requests accommodation due to a COVID-19 disability, employers should first consider asking for supporting documentation. Note: The definition of disability is broad, so employers should be wary of challenging an employee’s disability once presented with documentation.
Per the ADA, employers must provide reasonable accommodations if the employee’s disability requires it and the accommodations do not pose an undue hardship to the employer. During accommodation discussions, employers should document conversations, remain flexible, and consult their legal counsel.