The Equal Employment Opportunity Commission (EEOC) recently released guidance regarding whether COVID-19 is a disability under the Americans with Disabilities Act (ADA). Under the ADA, an employer cannot take an adverse employment action against an individual because of that individual’s disability. A disability under the ADA is a physical or mental impairment that substantially limits a major life activity. The EEOC stated that COVID-19 is a physical or mental impairment. The question is, does it substantially limit a major life activity? The answer to that question is, it depends.  

The EEOC guidance identifies circumstances in which the EEOC would consider COVID-19 to be a disability. Examples include:  

1.    An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus.

2.    An individual diagnosed with COVID-19 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.

3.    An individual who has been diagnosed with COVID-19 and 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.

4.    An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting and nausea that linger for many months, even if intermittently. 

Examples of circumstances where the EEOC would not consider COVID-19 to be a disability include the following:  

a.    An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks but experiences no further symptoms or effects.

b.   An individual who is infected with the virus causing COVID-19 but is asymptomatic. 

The EEOC further noted that in some instances, while itself not a disability, COVID-19 can create (or exacerbate) other health conditions which result in the employee being disabled for purposes of the ADA. For example, COVID-19 may cause an individual to suffer heart inflammation (or make an existing minor heart condition worse), suffer a stroke or develop diabetes. In these instances, the employee will be considered to be disabled under the ADA.  

The EEOC explained that employers are allowed, as with all disabilities, to request medical certification of the employee’s disability in responding to any accommodation requests by such employee when the need for accommodation is not obvious or already known. Further, employers are free but are not required to accommodate the requests of employees with COVID-19 in circumstances where the illness itself does not constitute a disability and has not lead to another impairment becoming a disability under the ADA.  

Please call Sean Monson if you have any questions regarding the ADA and COVID-19 or regarding the ADA generally.