EEOC Details When COVID-19 Can Qualify as ADA Disability
Author: Michael Cardman, XpertHR Legal Editor
December 14, 2021
In updated guidance released today, the Equal Employment Opportunity Commission (EEOC) set forth its stance on when COVID-19 can be a "disability" under Title I of the Americans with Disabilities Act (ADA) and thereby trigger the law's reasonable accommodation requirements and discrimination protections.
While the EEOC stressed that an individual case-by-case assessment will always be needed to determine whether a specific employee's COVID-19 counts as an actual disability, the agency provided some examples of when an individual with COVID-19 might be "substantially limited in a major life activity" - a key basis for a disability.
For example, an employee who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which their doctor attributes to COVID-19, may have a disability. On the other hand, an employee who experiences congestion, sore throat, fever, headaches and/or gastrointestinal discomfort that resolve within several weeks and experiences no further symptoms or effects does not have a disability, the EEOC said.
In addition, the EEOC stated that an employee may be regarded as having a disability - and thereby protected from discrimination even if they don't have an actual disability - if they are fired, not hired, harassed or subjected to any other adverse action because they had COVID-19 or the employer mistakenly believed they had COVID-19.
Earlier this year, the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) issued guidance focusing solely on whether so-called long COVID qualifies as a disability under the ADA and other laws. Today's new guidance from the EEOC looks more broadly at COVID-19 in general.