Can COVID-19 be Considered a Disability?

The EEOC recently published guidance indicating that, in some instances, COVID-19 may be considered a disability under the Americans with Disabilities Act (“ADA”). Although the definition of “disability” is construed broadly in favor of coverage, not every COVID-19 case will qualify as a disability. The ADA requires a case-by-case approach to make this determination.

How Does the ADA Define Disability?

The ADA specifies that a person may be an individual with a disability in one of three ways: 1) the person has an “actual” disability; 2) the person has a “record of” a disability; or 3) the person is “regarded as” an individual with a disability. COVID-19 may also end up causing impairments or worsening pre-existing conditions that are themselves disabilities (i.e. stroke, diabetes, worsened heart condition, etc.).

COVID-19 is considered an “actual” disability if the individual’s condition or any symptoms are a physical or mental impairment that substantially limits one or more major life activities. Examples of major life activities are major bodily functions, such as respiratory, lung, or heart function, or major activities, such as walking. An individualized assessment is necessary to determine whether COVID-19 limits a person’s major life activities. A person who is asymptomatic or a person with mild symptoms similar to those of a cold or flu that resolve in a few weeks with no other consequences will not have an actual disability within the meaning of the ADA. The EEOC provided the following examples of ways in which COVID-19 substantially limits a major life activity:

• 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, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.
• 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, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.
• An individual who has been diagnosed with COVID-19 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. The individual is substantially limited in cardiovascular function and circulatory function, among others.
• An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA.

An individual who has or had COVID-19 may be an individual with a “record of” a disability under the ADA if the individual has a history of, or has been misclassified as having, an impairment that substantially limits one or more major life activities.

An individual may be “regarded as” an individual with a disability if he or she is subjected to adverse employment action because the employer believes the person has an impairment, such as COVID-19, unless the actual or perceived impairment is objectively both transitory (lasting or expected to last six months or less) and minor. For this definition of disability, whether the actual or perceived impairment substantially limits a major life activity is irrelevant. The EEOC provided the following examples of situations in which an employer may “regard” an applicant or employee with COVID-19 as an individual with a disability:

• An employer would regard an employee as having a disability if the employer fires the individual because the employee had symptoms of COVID-19, which, although minor, lasted or were expected to last more than six months. The employer could not show that the impairment was both transitory and minor.
• An employer would regard an employee as having a disability if the employer fires the individual for having COVID-19, and the COVID-19, although lasting or expected to last less than six months, caused non-minor symptoms. In these circumstances, the employer could not show that the impairment was both transitory and minor.

COVID-19 and Reasonable Accommodations

To be eligible for a reasonable accommodation, an individual must either meet the “actual” or “record of” definitions of disability under the ADA. If the individual meets either definition and needs a reasonable accommodation, the employer should engage in an interactive process to determine the available accommodation(s). If the disability or need for accommodation is not obvious, the employer may ask the employee to provide reasonable documentation supporting the disability and the need for accommodation. An employer is only obligated to provide an accommodation that does not impose an undue hardship.

TAKE ACTION

Employers now have a lot of information about employees, such as COVID-19 test results, that they would not have previously had. Employers should be aware of the potential for increased litigation surrounding COVID-19 now that the EEOC has announced that under certain circumstances, COVID-19 or its effects may be considered a disability under the ADA. Employers must continue to engage in the interactive process with employees when needed, and employers can and should ask employees for reasonable documentation supporting their need for an accommodation if that need is not clear.