On a scale of 😴 to 🤯, let’s score the EEOC’s latest guidance on whether COVID-19 is a disability


I was skeptical.

Yesterday, at 10:17 AM, I received an emailed press release from the U.S. Equal Employment Opportunity Commission. The federal agency touted “adding a new section [to its existing COVID-19 Technical Guidance] to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.”

To that point, the EEOC’s position had basically been, “it depends.”eeoc.gov/…/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

But this new press release had some “key information.” I’ll use an emoji grading system to decide what “key information” is noteworthy, if any.

In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.

Now, here is a critical point that some folks overlook. For example, an individual might have a mild case of COVID-19 (not a disability), but after an individual’s COVID-19 resolves, the individual develops diabetes or heart inflammation attributed to the COVID-19. If these other conditions substantially limit one or more major activities, then that individual has a disability under the ADA.

This isn’t mind-blowing stuff 🤯, but it’s enough to raise eyebrows and trip up plenty of employers.

Overall score: 🤨

An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks—with no other consequences—will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.

COVID-19 is a physiological condition affecting one or more body systems. As a result, it is a “physical or mental impairment” under the ADA. The real question is, when does it “substantially limit” one or more major life activities?

Here’s an EEOC example of when COVID-19 does substantially limit one or more major life activities:

  • 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.

Here’s an example of when it doesn’t

  • 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 CDC guidance for isolation during the period of infectiousness.

On paper, this is easy to understand. In practice, it may be a little more difficult to pull off, especially with “long COVID” as a possibility. So don’t play doctor yourself. Instead, if you have questions about any duty to accommodate, ask for medical information.

Overall score: 😬

“Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer. But, employers can choose to do more than the ADA requires.”

This is ADA 101, with nothing unique here to COVID-19. The odds are that you’re accommodating anyway with remote work or leave from work when someone has COVID-19.

Overall score: 😴

An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

This reminds me a little of those 100%-healed cases where an employer insists on an employee with a disability having ‘no restrictions’ or being ‘fully healed’ as conditions for allowing him/her to return to work. Or how about when an employer has an employee who has an employee on leave for mental health issues (e.g., bipolar disorder) and the company irrationally refuses to allow the employee to return to work even though the employee’s doctor says that the individual will be ok with prescription medicine.

Much like the employers that brew trouble by diagnosing for themselves when COVID-19 crosses the line into substantially limiting territory, employers caught playing doctor here find themselves in lawsuits.

Overall score: 😧

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