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EEOC Deems Covid-19 a Potential ‘Disability'—Now What?

Jan. 25, 2022, 9:01 AM

In December, the Equal Employment Opportunity Commission (EEOC) issued updated guidance, clarifying the circumstances under which Covid-19 may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

The guidance expressly states for the first time that an individual suffering from symptoms of Covid-19, which substantially limit a major life activity, may have a qualifying disability and thus be entitled to reasonable accommodation under the ADA. Employers should take note of this and any future Covid-19 related developments because the failure to provide reasonable accommodation for disabilities stemming from Covid-19 may expose employers to potential liability.

While the Labor Department and Department of Health and Human Services previously issued guidance on July 26, 2021, focusing solely on “long-haul” Covid or “long Covid,” that guidance was limited in scope and did not extend to private employment. The EEOC’s guidance is intended to apply more broadly to any Covid-19 infection and the obligations of private employers.

In particular, the EEOC guidance explains that if an employee’s Covid-19 symptoms meet the definition of a “disability” under the ADA, the employer is required to engage in an interactive process with the employee to determine whether a reasonable accommodation exists that would not pose an undue hardship on the operation of the employer’s business.

Defining a Disability Under ADA

The EEOC guidance further explains that the ADA sets forth a three-part definition of disability, which applies to Covid-19 in the same way it applies to any other medical condition.

Specifically, an individual can have a “disability” within the meaning of the ADA in one of three ways:

  • “Actual” disability: The individual has a physical or mental impairment that substantially limits a major life activity. These life activities can range from walking, talking, seeing, hearing, learning, or any operation of a major bodily function;
  • “Record of” disability: The individual has a history or “record of” an actual disability; and
  • Regarded as” an individual with a disability: The individual is subject to an adverse action because of an impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor. Note that solely being “regarded as” an individual with a disability does not warrant a requirement for a reasonable accommodation.

Under the foregoing definition of “disability,” an individual claiming a disability and seeking reasonable accommodation due to Covid-19 must have symptoms that substantially limit a major life activity. Thus, individuals with asymptomatic infections and those with symptoms similar to that of the common cold or the flu that resolve in a matter of several weeks will not satisfy the ADA’s definition of disability.

Conversely, the EEOC guidance identifies the following symptoms associated with Covid-19, which could substantially limit a major life activity:

  • ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating;
  • shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months;
  • heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months; and
  • symptoms associated with “long Covid,” such as intestinal pain, vomiting, and nausea that linger for many months, even if intermittently.

The guidance also explains that certain conditions which can be worsened by Covid-19 may constitute a disability, depending on the particular facts and circumstances. For example, a heart condition that did not substantially limit a major life activity before the employee contracted Covid-19 may worsen due to Covid-19 and become a covered disability.

Determining if a Reasonable Accommodation Exists

Importantly, the EEOC guidance clarifies that simply having a disability, even one due to Covid-19, does not automatically entitle an employee to a reasonable accommodation. Rather, the guidance states that an individual is not entitled to an accommodation, unless their disability requires it and the requested accommodation does not pose an undue hardship for the employer.

In order to determine whether an employee has a covered disability and whether a reasonable accommodation exists, employers are entitled to first request documentation from the employee’s medical provider about the employee’s disability and need for a reasonable accommodation.

Once it is determined that a disability exists, the employer should engage in an “interactive process” with the employee and determine whether there is an accommodation that would allow the employee to work, without causing the employer an undue hardship (i.e., significant difficulty or expense).

Reasonable accommodations may include: schedule changes, physical modifications to the workplace, telework, or special or modified equipment.

In light of the foregoing EEOC guidance, employers should act now to ensure they have procedures in place for identifying and evaluating accommodation requests from individuals with Covid-19 and other medical conditions. Such requests likely will increase as the pandemic persists and more individuals become infected with Covid-19.

Thus, it is only by ensuring compliance with the latest EEOC guidance, and any other laws seeking to prevent the spread of Covid-19 in the workplace (such as the Centers for Medicare and Medicaid Services rule on health-care workers or the Occupational Safety and Health Administration shot-or-test rule) that employers can limit their exposure to potential disability discrimination or other claims.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

William J. Tarnow is chair of Neal, Gerber & Eisenberg’s Labor & Employment practice group and a member of the firm’s executive committee. He is a litigator who manages employment-related disputes before federal and state courts and administrative agencies.

Alexis M. Dominguez is a partner in Neal, Gerber & Eisenberg’s Labor & Employment practice group. He has broad experience defending employment discrimination, wage and hour, and restrictive covenant claims.

Alissa J. Griffin is an associate in Neal, Gerber & Eisenberg’s Labor & Employment practice group where she focuses on advising clients on employee-related legal issues.

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