This past summer, we reported that President Biden expressed in a speech commemorating the enactment of the Americans with Disabilities Act (ADA) that his administration believes “long-haul” COVID may constitute a disability. Unlike mild cases of COVID-19 that resolve in days or weeks, long-haul COVID is marked by chronic symptoms that continue weeks or months after acute symptoms resolve. These symptoms include dizziness, chronic headaches, difficulty concentrating, mental health sequellae, and other conditions. President Biden’s statement was merely an expression of the administration’s policy and did not carry the force or effect of law. This week, however, the U.S. Equal Employment Opportunity Commission (EEOC) – the federal agency that interprets and enforces the ADA in the employment context – amended its informal COVID-19 guidance to add it too believes “long-haul COVID” may, in certain circumstances, constitute a protected disability.

First noting the Department of Justice (DOJ) and Department of Health and Human Services (DHHS) already have opined that long-haul COVID may constitute a disability for purposes of disability accessibility in the public accommodation space (and incorporating the reasoning behind their opinions by reference), the EEOC went on to note that persons impacted by extended symptoms resulting from COVID may be substantially limited in a major life activity. For instance, an individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, “brain fog” and difficulty with memory and concentration resulting from the virus may be substantially limited in neurological and brain function, among other major life activities. Similarly, an individual who recovers from acute COVID-19-related breathing issues but has persistent, extended shortness of breath and associated fatigue may be substantially limited in cardiovascular, respiratory, and circulatory function. Further, an individual diagnosed with “long COVID” who experiences lingering intestinal pain, vomiting, and nausea for months after initial diagnosis may be substantially limited in the major life activity of digestion/gastrointestinal function.

By contrast, an individual whose COVID-19 symptoms resolve within several weeks with no lingering or consequential effects does not have an actual disability under the ADA, even though they may have been subject to isolation measures during their peak contagious period. Finally, even a currently infected individual will not be deemed to be actually disabled if they are asymptomatic, as the virus is not impacting any major life activity. Just as the DOJ and DHHS warned, the EEOC echoed the sentiment that disability status is a highly individualized assessment, and diagnosis with COVID or even long COVID is not an automatic qualifier for protection.

The EEOC added some additional points regarding COVID-19 as a potential disability:

• Even if the individual is not now, and never was, actually disabled due to COVID-19, a person who has or has had COVID-19 can be an individual with a “record of” a disability if he or she has a history of, or has been misclassified as having, an impairment that substantially limits one or more major life activities.

• Likewise, an individual who is not disabled due to COVID-19 may nonetheless be regarded as having an impairment because of a mistaken belief on the employer’s part, whether as to the person’s status as infected or as to the scope of the impairment resulting from infection. For example, if an employer fires an individual for contracting or having symptoms of COVID-19 because the employer presumes he or she will be impaired for many weeks or months, the individual may claim protections as a person regarded as disabled.

• Even if an individual’s COVID-19 status may not alone constitute a disability, if the individual’s underlying condition is exacerbated by COVID-19 (for example, an individual with well-controlled diabetes before COVID whose symptoms are worsened by the virus), or the COVID-19 virus causes an impairment (for example, the virus causes heart inflammation which affects circulation), that underlying-but-exacerbated condition or resulting impairment may constitute a disability.

Potential coverage under the ADA is a starting point; as always, requests for accommodation should be carefully considered and, given the rapidly developing nature of COVID-19-related conditions, consultation with counsel is encouraged.