The EEOC has updated guidance clarifying when COVID-19 may comprise a disability under the ADA.  In a new Section N of its COVID-19 guidance entitled “COVID-19 and the Definition of ‘Disability’ Under the ADA, Rehabilitation Act, and other EEO Laws,” the EEOC focuses on when COVID-19 is, or is not, a disability, and the resulting impact on an employer’s obligation(s) under the law.  Importantly, the guidance clarifies that depending on the circumstances, COVID-19 can meet the ADA’s three-part definition of “disability” (i.e., “actual disability”, “record of disability” or being “regarded as an individual with a disability”) and provide protections to applicants and employees.  However, not every individual with COVID-19 will qualify as disabled.  Employers must assess on a case-by-case basis to determine if the requisite standards are met.  The guidance provides multiple examples of actual disabilities and regarded as disabilities to further assist employers in their assessments.

Actual Disability. The updated guidance primarily focuses on “actual disability,” and when COVID-19 is, or is not, an actual disability under the ADA.  Depending on the specific facts involved, “a person with COVID-19 has an actual disability if the person’s medical condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits one or more major life activities.’”  According to the guidance, “COVID-19 is a physiological condition affecting one or more body systems [and] as a result is a ‘physical or mental impairment’ under the ADA.  The key consideration is whether the effects of an individual’s COVID-19 “substantially limit[s] a major life activity.” 

An individualized assessment applying existing ADA rules is critical to determining whether the effects of a person’s COVID-19 substantially limit a major life activity.  For example, applicants or employees with COVID-19 who are asymptomatic or have mild symptoms (i.e., similar to a common cold or flu) that resolve in a matter of weeks, with no other consequences, will not have an ADA disability, and therefore, will not be eligible for reasonable accommodations under the ADA. 

However, situations involving more serious symptoms or “long COVID” (i.e., when an individual experiences a range of new or ongoing symptoms for weeks or months after having COVID-19) may constitute an actual disability and require legal protections be afforded to such individuals.  For example, 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.  Notably, the duration of the limitations from COVID-19 is not a decisive factor in determining whether or not COVID-19 is an actual disability.  The guidance explains that the limitations from COVID-19 do not have to last a certain period of time or be long-term to be “substantially limiting.”  Even impairments lasting for a short period of time may still be covered if “sufficiently severe.” 

The guidance also clarifies that even when a worker’s initial case of COVID-19 and/or an existing condition (not COVID-19-related) was not covered under the ADA, the workers’ COVID-19 may end up causing or worsening the condition and may be considered an actual disability.  For example, an individual initially has a heart condition that is not substantially limiting.  The individual is infected with COVID-19, which worsens the person’s heart condition so that the condition now substantially limits the person’s circulatory function and constitutes an actual disability under the ADA.

Further, the guidance reiterates that even though an applicant or employee has a qualifying disability, they are not automatically entitled to a reasonable accommodation under the ADA.  They are entitled to one when their disability requires it, and the accommodation is not an undue hardship to the employer or a “direct threat” to the health and safety of themselves or others in the workplace.  

Regarded As Disability.  The guidance also provides considerations for employers on the risks of “regarded as” disability claims, where an employee is subjected to an adverse action (i.e., fired or not hired or harassed) because the person has an impairment, such as COVID-19, or the employer mistakenly believes the employee has such an impairment, unless the actual or perceived impairment is objectively both transitory (i.e., lasting or expected to last six months or less) and minor.  For example, 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 would not be able to demonstrate that the impairment was both transitory and minor.

However, an employer does not automatically violate the ADA by taking adverse action against an individual because they have COVID-19.  In some instances, the “direct threat” defense under the ADA may allow an employer to require an employee (or applicant) with COVID-19 symptoms to “refrain from physically entering the workplace during the CDC-recommended period of isolation due to the significant risk of substantial harm to the health of others.”  However, employers risk violating the ADA if it excludes an employee from returning to the workplace based on “myths, fears, or stereotypes” after the threat has passed (i.e., the employee is no longer infectious and, therefore, medically able to return to work).

Further, employers should take note that ADA requirements with respect to disability-related inquiries, medical exams, confidentiality of medical information, interference and retaliation still apply to all applicants and employees regardless of whether they have a “disability” under the ADA.  

Key Takeaways for Employers:

• Employers should realize that in some cases an employee’s COVID-19 infection may place them in ADA territory, particularly for those with long haul COVID, and therefore, they should be prepared to engage in the interactive process.

• In making that determination, employers should make individualized assessments.  Again, the guidance emphasizes the importance of case-by-case assessments of the effect(s) of an individual employee’s COVID-19, and whether such effect(s) substantially limits one or more major life activities. 

• Mild symptoms or symptoms that last only a short period of time, without any other consequences, will not constitute a disability and afford protections under the ADA.  But a more serious reaction to COVID-19 can disable an employee.  Again, employers are cautioned from making assessments solely based on whether or not the limitations of COVID-19 are long term, as even short-termed limitations may substantially limit an employee’s major life activities.

• When an existing condition or COVID-19 may not initially be considered a disability, employers must keep in mind that the employee may become subsequently disabled if the COVID-19 infection worsens a condition and/or if the latter causes more severe illness. 

• As employers work to implement policies and/or collect information regarding COVID-19 testing and vaccination status, employers should be mindful of this guidance and the ADA requirements.