- Employers must conduct individualized assessments to determine whether an employee's COVID-19 constitutes a disability under the Americans with Disabilities Act, the U.S. Equal Employment Opportunity Commission said in technical guidance updated Dec. 14. The disease does not automatically qualify as a disability.
- "Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws the EEOC enforces," EEOC Chair Charlotte A. Burrows said in a news release. "Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations."
- The update follows President Joe Biden's July announcement that "long COVID" may be considered a disability under the ADA. Symptoms characteristic of the condition include breathing problems, brain fog, chronic pain and fatigue — all of which "can sometimes rise to the level of a disability," Biden said.
The agency's update — which focused on when the disease qualifies as a disability — reinforces ADA basics.
The agency discussed how the ADA's three-pronged definition of disability applies to COVID-19. Put simply, its application mirrors the way the law treats "any other medical condition," EEOC said. A person can have a disability under the ADA if they have an "actual disability," if they have a record of a disability or if they are regarded as an individual with a disability.
A person who contracts the virus may have what the EEOC calls an "actual disability": "a physical or mental impairment that substantially limits a major life activity." Coronavirus may prevent someone from walking or breathing well enough, for example, to carry out the essential functions of their job. But a person diagnosed with COVID-19 who experiences temporary symptoms such as a sore throat and fever is not considered to have a disability under the ADA. "This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness," EEOC said.
A person who has COVID-19 may have a record of a disability if the worker "has a history of, or has been misclassified as having an impairment" that rises to the definition of an actual disability.
An employee can be regarded as someone with a disability if they are subjected to an adverse action because of their COVID-19 illness or because of an employer's mistaken belief that they are sick with COVID-19, EEOC said. The agency offered an example. If an employer fired an employee who showed minor symptoms of COVID-19 that were expected to last more than six months, the employer would have regarded the worker as having a disability. The employer would be unable to show that the impairment was "transitory and minor," EEOC said.
Sometimes, COVID-19 doesn't constitute a disability itself but causes impairments that are disabilities under the ADA, the agency noted. A worker who develops heart inflammation due to COVID-19, for instance, may experience limited circulatory function and be restricted in heavy lifting.