EEOC Clarifies When COVID-19 May Be an ADA-Covered Disability

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP December 16, 2021
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An employee's or job applicant's COVID-19-related impairment may qualify as a disability under the Americans with Disabilities Act (ADA) even if the worker's initial COVID-19 illness was not covered, according to updated guidance from the U.S. Equal Employment Opportunity Commission (EEOC).

A worker's COVID-19 illness will not be considered an ADA disability if the worker experiences mild COVID-19 symptoms that resolve in a few weeks with no other consequences. In that case, the worker would not be entitled to a reasonable accommodation under the act, according to the agency's Dec. 14 update. The EEOC noted that employers may choose to do more than the ADA requires.

In July, the Department of Justice and the Department of Health and Human Services (HHS) issued joint guidance on disabilities related to "long COVID" for people with long-term effects of COVID-19. The EEOC's new guidance specifically focuses on COVID-19 as a disability in the employment context under Title I of the Americans with Disabilities Act (ADA) and section 501 of the Rehabilitation Act.

"This update to our COVID-19 information provides an additional resource for employees and employers facing the varied manifestations of COVID-19," said EEOC Chair Charlotte Burrows. "Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations."

Three-Part Definition of Disability Applies

This is important technical guidance because it expands potential ADA protections to specifically include COVID-19 as a covered disability, noted David Barron, an attorney with Cozen O'Connor in Houston and Dallas. In most cases, he said, employers have largely focused on the underlying illnesses or conditions driving employees' requests for accommodations during the pandemic, such as compromised immunity, versus COVID-19 itself. 

The EEOC reminded employers that the ADA's three-part definition of disability applies to COVID-19 in the same way it applies to other medical conditions. The ADA definition of "disability" includes the following:

  • An actual disability, which is a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing or hearing).
  • A history or record of an actual disability (such as cancer that is in remission).
  • A perception that a worker has a disability or is regarded as having a disability.

Additionally, the EEOC noted, certain conditions can be caused or worsened by COVID-19. For example, an employee who had COVID-19 may develop heart inflammation, experience a stroke or develop diabetes that is attributed to the coronavirus after COVID-19 symptoms resolve.

As another example, the agency said, a heart condition that did not substantially limit a major life activity before the worker contracted COVID-19 may worsen because of the coronavirus and become an ADA-covered disability.

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Coronavirus and COVID-19

Guidance Addresses Long COVID-19

"This is also the first technical guidance which specifically delves into the legal protections for employees with long COVID," Barron said.

As an example, the EEOC said, "An individual diagnosed with 'long COVID' who experiences COVID-19-related intestinal pain, vomiting and nausea that lingers 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." 

Long COVID-19 will likely be an issue that lingers well after the pandemic is over, Barron predicted, as it is not clear how long someone may experience the condition. 

"This guidance also serves as a warning to employers who 'perceive' employees as having a disability because of COVID or long COVID symptoms which may interfere with duties or cause absenteeism," he added. "A perception of a disability, even if the person's impairment does not rise to the level of an actual disability, may be covered under the ADA."

Exploring Reasonable Accommodations

"Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA," the EEOC explained. "They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer."

Leslie Wallis, an attorney with Ogletree Deakins in Los Angeles, said the steps that should be taken to explore reasonable accommodations typically include obtaining information from the employee's medical provider about the employee's need for an accommodation and the expected duration of the accommodation.

Possible accommodations include schedule changes, physical modifications to the workplace, remote work, and special or modified equipment.

If an employer rejects an accommodation request under the ADA based on undue hardship, the decision must be based on "an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense," according to the EEOC. Employers should consider the following factors:

  • The nature and cost of the accommodation needed.
  • The facility's overall financial resources and number of employees, as well as the effect on the facility's expenses and resources.
  • The employer's overall financial resources, size, employee headcount, and type and location of facilities (if the facility that is evaluating the request is part of a larger entity).
  • The employer's type of operations, including the structure and functions of the workforce, as well as the geographic separateness and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer.
  • The impact of the accommodation on the facility's operations.

"An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee's return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others," the EEOC said.

Barron recommended that employers review their policies on handling COVID-19 cases to ensure:

  • Employees with COVID-19 are not treated adversely under applicable policies (such as absenteeism policies).
  • Supervisors are trained to refer all requests for accommodation to qualified members of management or human resources who can handle such requests appropriately.
  • Cases of long COVID-19 are flagged for possible protections under the ADA and the Family and Medical Leave Act in terms of reasonable accommodations and job-protected leave.

Visit SHRM's resource hub page on the coronavirus and COVID-19.

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