On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” Technical Assistance Questions & Answers (the “Guidance”). The most significant change is the addition of a long-awaited discussion of “long COVID,” which other federal agencies had identified as a disability in joint guidance issued back in July.

The Guidance now contains a new Section N, which addresses when COVID-19 can be considered a disability under each of the three standards of the Americans with Disabilities Act (ADA), i.e., “actual disability,” “record of disability,” or “regarded as an individual with a disability.”  Regardless of which definition may apply, the Guidance stresses the usual ADA rubric—that employers must conduct a fact intensive, case-by-case analysis to determine if an applicant or employee with COVID-19 or “long COVID” has a covered disability under the ADA.

Actual Disability

The Guidance provides some examples as to when an individual with COVID-19 can be considered to have an actual disability. To qualify as being “actually disabled” under the ADA, an individual must have a physical or mental impairment that substantially limits one or more major life activities. Thus, someone who has tested positive for COVID-19 with mild symptoms (e.g., a sore throat, headache, fever, etc.) that last only a few weeks, and which symptoms or effects do not continue thereafter, is not considered “actually disabled” under the definition of the ADA. The same would be true for those who test positive but are asymptomatic.

However, an individual with more serious symptoms attributable to COVID-19, e.g., continuing headaches, brain fog, dizziness, or trouble concentrating or remembering, may be considered disabled. Individuals who experience long COVID symptoms, such as recurring intestinal pain, vomiting and nausea, may also be considered disabled under the ADA’s definition. The Guidance further advises that an individual may have a covered disability if COVID aggravates an existing condition, such as diabetes or breathing disorders.

Record of Disability

Similar to the “actual disability” definition under the ADA, the Guidance also provides that an individual can be classified as having a “record of” a disability if they have a history or misclassification of an impairment that substantially limits one or more major life activities due to COVID-19.  This determination still must be made on an individualized, case-by-case basis.

Regarded as Disabled

The Guidance states that an individual can be protected under the “regarded as” standard, if they were subjected to an adverse employment action because of having had COVID-19 or because the employer mistakenly believed that the individual had COVID-19. An individual will not satisfy the definition of “regarded as” having a disability, however, if their COVID-19 was objectively transitory (defined as lasting or expected to last six months or less) and minor. The Guidance does not define what constitutes “minor,” except to note that “not every impairment will constitute a disability under the ADA.”

The Guidance advises that employers that “regard” an individual as having a disability because the person has COVID-19 or symptoms of the illness may be able to rely on the ADA’s “direct threat” defense in barring the employee from physically entering the workplace during the CDC-recommended period of isolation, due to the risk of harm to the health of others posed by the virus. However, the Guidance cautions that relying on “myths, fears or stereotypes” about COVID-19 in prohibiting an employee’s return to work risks violating the ADA where the employee is no longer infectious and is medically able to return to work without posing a threat to others.

Reasonable Accommodation

Under the ADA, individuals who meet the “actual” or “record of” definitions of disability are eligible for reasonable accommodation, provided the accommodation does not pose an undue hardship on the employer.  Individuals who only meet the “regarded as” definition are not so-entitled. The Guidance advises that if multiple reasonable accommodations are available, the employer may choose which to provide. Employers should be mindful, however, that local law, e.g., the New York City Human Rights Act, may provide otherwise. The Guidance states that employers may choose to provide accommodations beyond what the ADA mandates, but, should be consistent in doing so to avoid potential disparate treatment claims.

In light of the EEOC’s updated guidance, employers should remember to conduct a case-by-case analysis to determine whether an individual meets the definition of disability under the ADA when that individual requests a reasonable accommodation based on their COVID-19 or long COVID diagnosis (or perception thereof). While it is important to avoid disparate treatment of employees, individualized review of each individual case, using the interactive process to determine whether a reasonable accommodation is appropriate or would pose an undue hardship on the employer, is necessary, given the striking variations with which COVID-19 and long COVID can manifest. Employers should also take care not to bar employees from the workplace because of the actual or perceived disability from COVID-19, unless the employee actually presents a direct threat to others’ well-being or if there are other legitimate non-discriminatory reasons for the action (e.g., refusal to wear a mask or be vaccinated, if required by law or employer’s policy).