On December 14, 2021, the Equal Employment Opportunity Commission (“EEOC”) supplemented its guidance concerning COVID-19, the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and other Equal Employment Opportunity (“EEO”) Laws to confirm that COVID-19 can qualify as a disability under any of the three “disability” definitions in the ADA. 

COVID-19 can be—but is not always—an actual disability under the ADA if it causes a physical or mental impairment that substantially limits one or more major life activities. Similarly, a person with a history of COVID-19 may qualify as a person with a “record of” a disability under the ADA. Pre-existing conditions worsened by the virus may also qualify an employee for protection under the ADA.

The EEOC cautioned that an individualized assessment is always necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity, such as breathing, concentrating or interacting with others. However, the limitations from COVID-19 do not necessarily need to be consistent or long-term to be substantially limiting. 

For example, an individual who experiences ongoing intermittent headaches, dizziness and brain fog attributed to the virus may qualify as disabled. An individual diagnosed with COVID-19 who experiences heart palpitations, chest pain and shortness of breath attributable to the virus may also qualify as disabled. However, an employee diagnosed with COVID-19 who is asymptomatic or whose symptoms resolve within a few weeks with no further effects likely does not qualify as disabled, even if the employee is subject to isolation during the period of infectiousness.

Employers should be aware that employees may be unlawfully “regarded as” an individual with a disability if they have COVID-19 or if the employer mistakenly believes they have COVID-19.

The guidance provides that individuals must meet either the “actual” or “record of” definitions of disability to be eligible for a reasonable accommodation under the ADA. Individuals who only meet the “regarded as” definition are not entitled to receive reasonable accommodation. While employers can voluntarily provide accommodations beyond what is required by the ADA, it may be a violation of the ADA to prevent an employee diagnosed with COVID-19 from returning to the workplace once they are no longer infectious. The EEOC also reiterated the need for flexibility in accommodations, including schedule changes, physical modifications, telework or special equipment.

The guidance confirms the importance for employers to carefully evaluate COVID-19’s effects on its workforce on a case-by-case basis.