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Covid Can Be a Disability Under Anti-Bias Law, EEOC Says (1)

Dec. 14, 2021, 3:55 PMUpdated: Dec. 14, 2021, 8:07 PM

Workers who contract Covid-19 can be protected from discrimination under the Americans with Disabilities Act, the U.S. Equal Employment Opportunity Commission said in new guidance Tuesday.

Depending on each worker’s circumstances, the EEOC said, the virus can meet 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.

Someone who has Covid-19 and experiences multiple-day headaches, dizziness, and brain fog attributed to the virus is an example of an impairment under the ADA.

However, not every person with Covid-19 will qualify as disabled, the agency said. Employers must assess each employee individually to determine if they meet the appropriate standards, it said. If someone has Covid-19 but is asymptomatic or has mild symptoms like the flu that only lasts a few weeks with no other consequences, they wouldn’t qualify.

The agency’s revised guidance expands on a September update that said workers suffering from “long-haul” Covid-19 may be disabled under the ADA “in certain circumstances.” The Health & Human Services and Justice departments said in July that long Covid can classify as a disability.

There is no requirement for limitations from Covid-19 to last a particular length of time for someone to qualify under the ADA, the EEOC said. That includes if symptoms come and go.

Impairments that result from getting Covid-19, such as a stroke that limits brain function, can be considered a disability under the ADA. It could be a potential violation of the ADA if an employer prevents an employee from returning to work once they are no longer infectious.

“Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws the EEOC enforces. Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations,” EEOC Chair Charlotte Burrows (D) said in a statement.

‘Nothing Unexpected’

“There’s no changes to the law, it’s what we’ve been saying the whole time—that Covid can be a disability,” said Eve Hill, board chair of the Bazelon Center for Mental Health Law, a disability law advocacy organization.

Karla Grossenbacher, a partner at Seyfarth Shaw focused on labor and employment law, said there’s “nothing unexpected” in the guidance.

“But it’s good to have confirmation that the analysis is what we thought it would be,” she said.

Grossenbacher said this provides “clear guidance on how to analyze the issue” when an employee applies for accommodations based on Covid-19 and that the same traditional analysis applies for determining whether accommodations are necessary.

“One of the things employers often don’t understand, if Covid aggravates another underlying preexisting condition, that condition can become a disability, even if it wasn’t before,” something the guidance addressed, said Hill, a partner at Brown Goldstein & Levy focused on civil rights law.

“Everybody being on the same page is really useful,” Hill said.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Shira Stein in Washington at sstein@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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