EEOC Guidance Clarifies When COVID-19 Qualifies as a Disability

Many employees and employers have asked when COVID-19 qualifies as a disability under Title I of the Americans with Disabilities Act (ADA). On December 14th, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance to answer that question. In particular, the new section covers COVID-19 related impairments, qualifications for the disability, and related employer obligations under the ADA. Similarly, in November the EEOC updated its COVID-19 guidance to help employers avoid workplace discrimination claims.

Introduction to the COVID-19 Guidance’s Latest Addition

The latest addition covers when COVID-19 qualifies as a disability under the ADA and Section 501 of the Rehabilitation Act. In particular, the section focuses on reasonable accommodation and nondiscrimination requirements in the workplace. Whereas earlier guidance covered “Long COVID” specifically, this updated section focuses broadly on COVID-19 in general as a disability and how it affects employment. According to EEOC Chair Charlotte A. Burrows, “Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws the EEOC enforces. Workers ... may be eligible for reasonable accommodations.”

Key Points Clarify When COVID-19 Qualifies as a Disability

The ADA has applied its three-part definition of a disability to COVID-19 as it currently applies to other medical conditions. In detail, the ADA states that a person can claim a disability under one of the three qualifications:

1. The person has an “actual” disability that substantially limits a major life activity, e.g. walking, talking, seeing, etc.
2. When an individual has a “record of” a disability such as cancer that is in remission.
3. If the person is “regarded as” an individual with a disability. This covers individuals who may be subject to an adverse action because of an actual or perceived impairment.

The ADA’s definition of disability may be interpreted broadly to cover a wide range of impairments under the law. However, not every impairment always qualifies. Therefore, the ADA determines each case individually to determine if an applicant meets one of those three qualifications. For example, COVID-19 may meet the “actual” disability qualifications if:

• The COVID-19 related impairment affects one or more body systems like the brain, respiratory, or circulatory functions. Consequently, the condition may impair life activities such as walking, eating, breathing, or concentrating.
• An individual’s COVID-19 affliction is “substantially limiting.” In brief, the individual’s limitations do not necessarily need to be long-term or severely limit a major life activity.
• Mitigating measures are needed to perform a major life activity. Additionally, the qualification accounts for negative side effects of mitigating measures.
• A person with COVID-19 experiences episodic conditions where symptoms substantially limit a major life activity only when active.

Employer Obligations Under the Latest Addition

According to the EEOC, employers must provide reasonable accommodations to covered employees unless doing so would cause undue hardship. When an employee meets either the “actual” or “record of” definitions of disability, they may request reasonable accommodation. Accordingly, employers may:

• Request supporting medical documentation to verify the disability.
• Provide reasonable accommodations like scheduling changes, physical modifications to the workplace, or telework.

Request for Accommodation Form

In light of the EEOC’s clarifications of when COVID-19 qualifies as a disability, employers should expect requests for reasonable accommodations in the workplace. Under the ADA, employers must provide reasonable accommodation to individuals with disabilities unless doing so would cause undue hardship. Generally, the employee must let the employer know of their need for reasonable accommodation. Accordingly, employers should document these requests to demonstrate compliance with the ADA and any state disability discrimination laws. For this purpose, Personnel Concepts created the Request for Accommodation Form. The attorney-reviewed form allows employers to both document the request and make an official determination whether it will be approved.