When is COVID a Disability? EEOC’s Updated Guidance Offers Clarification

Posted by Kenneth N. Winkler on

The U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance adding a new section to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

New Q&A’s
EEOC’s new questions and answers focus broadly on COVID-19 and the definition of disability under Title I of the ADA and Section 501 of the Rehabilitation Act.  As the EEOC has previously done for other issues, the updates provide examples illustrating its position.  

When is COVID-19 an actual disability under the ADA?
The EEOC’s technical assistance explains that COVID-19 is treated the same as any other medical condition. Thus, a person that is infected 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.”  

Like other situations, an individualized assessment is necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances.

The EEOC guidance provides the following examples of individuals with an impairment that substantially limits a major life activity:

  • An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.
  • An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.
  • An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.
  • 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. For other examples of when “long COVID” can be a substantially limiting impairment, see the DOJ/HHS Guidance.

The EEOC guidance provides the following examples of individuals with an impairment that does not substantially limit a major life activity:

  • An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA.

This is so even though this person is subject to Centers for Disease Control and Prevention guidance for isolation during the period of infectiousness.

  • An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.

Key Considerations
The EEOC’s updated guidance is a helpful reference for employees and employers.  It is important to remember that whether COVID is a disability under the ADA must be determined on a case-by-case basis, applying existing legal standards to the facts of a particular situation. 

As the EEOC’s examples illustrate, the effects from COVID must be carefully considered because they can lead to a disability.  Moreover, long COVID will likely be a condition that creates challenges for employees and employers in the coming months and years and be the source of future ADA claims.

As always, please let me know if I can help.