The EEOC’s determination that Covid-19 can be a disability in many circumstances will create confusion, and tee up litigation, as companies grapple with how to accommodate workers who contract the virus and experience symptoms including brain fog, headaches, and shortness of breath.
Last week’s long-awaited guidance from the U.S. Equal Employment Opportunity Commission for employers and workers navigating the pandemic addresses issues that have already sparked discrimination lawsuits under the Americans with Disabilities Act.
The agency made clear that not every person with Covid-19 will qualify, but said the virus’s after effects should be considered under the ADA’s three definitions for a disability, which cover actual physical or mental impairments that substantially limit a major life activity; an employer’s perception that a worker has a disability; or the worker’s record of impairment.
Employment attorneys and academics say that guidance will help, but practically implementing the individualized assessments required by the ADA will continue to be a challenge.
“Wherever there is conflict, these employers likely won’t fight about whether something is a disability or not, and focus more on the interactive process,” said Adam Sencenbaugh, a partner with Haynes and Boone LLP. “The question will be, ‘How do we accommodate that based on the position? It’s a wide variety of potential issues and accommodations that need to be made. Much broader than I thought before.”
Workers will still be left vulnerable, especially as Covid-19 effects aren’t immediately obvious for those who ultimately get long-haul symptoms, and companies can still fire employees for getting the virus if it’s a “direct threat” to their workforce, said Ruth Colker, a law professor of constitutional law and disability discrimination at Ohio State University.
“We think of the ADA as protections for employees, but it also provides legitimate protections for employers,” Colker said. “It’s as if they are creating rules that aren’t consistent with the medical reality on the ground.”
Workers with Covid-19, even asymptomatic cases, can sue when they’re “regarded as” having a disability by their employers, the EEOC guidance said.
This argument has already been raised in lawsuits alleging discrimination against employees with positive Covid tests, though “regarded as” litigation has historically been rare compared to other cases in which people with disabilities say they were unlawfully denied job accommodations.
This prong of the ADA was previously applied in cases where workers were discriminated against for HIV or AIDS status, for example. But unlike other viruses, employers have been collecting information on Covid cases, which could lead to more litigation.
“Employers have a lot of information in their possession they might not otherwise have had,” Sencenbaugh said. “Before the EEOC guidance it was unclear where these claims could be pursued. It creates a pool of potential risk for employers.”
While the “regarded as” aspect of the law presents the possibility of additional claims, it remains to be seen if they prove meritorious, said Frank Morris, an attorney at Epstein Becker & Green P.C., who focuses on the ADA and employment law.
Colker said the commission’s guidance skewed toward employers, who may face lawsuits but can argue they took action against their workers because of a threat that spreading the virus would cause to their operations.
Employers have the power to argue “direct threat” in defending adverse employment actions, such as termination or demotion, simply for getting the virus, Colker said.
She said the contagious nature of Covid should have been considered by the commission. As it is, the EEOC’s guidance creates issues with the limited availability of paid leave, and even unpaid leave through the Family and Medical Leave Act, which only applies to employers who have 50 or more workers.
“An employer can say, ‘I can’t give you time off’ and can’t handle the disruption even for mild symptoms,” Colker said. “The employer gets away with it.”
She said the employer can simply say, “We don’t tolerate anyone who is contagious. The EEOC says if they regard this virus as transitory it’s okay to treat them adversely.”
An employer will also have to decide how a Covid-19 long-hauler’s essential functions are impacted, and how to accommodate them at work. There hasn’t been an onslaught of claims, yet, on long Covid issues.
“Covid-19 doesn’t automatically mean there is a disability. The ADA is individualized,” Morris said. “This omicron may throw more curves, as it’s more transmissible than prior rounds. That might cause people to think of the workplace rules once we know more about it.”
Haynes Boone’s Sencenbaugh said it will be difficult to match an accommodation with long-haul Covid. He predicted more litigation surrounding reasonable accommodations that employers must provide.
Employers aren’t required to automatically grant disability accommodation requests. They can defend decisions to deny them by arguing that the accommodation would pose an undue hardship on their business.
The majority of cases will consider what accommodations a person might need, said Michelle Olson, a Vedder Price shareholder, who advises employers.
Symptoms of long-haul Covid could be difficult to manage. She said it’s possible a worker might request more remote work, if possible, or built-in breaks, or shorter hours, for extended headaches or brain fog. Olson said that fact that these symptoms change over time will also prove challenging and require medical documentation throughout the process.
“Medically there are still open questions what happens to people after they get Covid and the ongoing effects to our body,” she said.