On December 14, 2021, the Equal Employment Opportunity Commission issued updated guidance on when COVID-19 constitutes a disability under Title I of the ADA.
Under the ADA, a person can be an individual with a disability in one of three ways:
- “Actual” Disability: a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, etc.);
- “Record of” a Disability: the person has a history or “record of” an actual disability (such as cancer that is in remission); or
- “Regarded as” an Individual with a Disability: The person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.
Applying these classifications to cases of COVID-19, the EEOC advises that a person 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.” Of course, an individualized assessment is necessary to determine whether COVID-19 limits a major life activity, and this can only be done on a case-by-case basis. A person who contracts COVID-19 but remains asymptomatic, or who experiences only mild symptoms that resolve in a matter of weeks, will not have an actual disability under the ADA. However, severe cases of COVID-19 that substantially limit major life activities will be considered an actual disability.
The EEOC provided some examples of situations where COVID-19 would be considered an actual disability:
- 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.
The EEOC also clarified that a person with COVID-19 could have a “record of” a disability or be “regarded as” an individual with a disability under certain select circumstances. Importantly, it is possible that an employer may not have engaged in unlawful discrimination under the ADA even if the employer took an adverse action based on an employee’s impairment. The employee must still be qualified for the job they hold. And an employer can require an employee with COVID-19 to refrain from physically entering a workplace based on the danger of transmission.
Employers should also be mindful that COVID-19 could cause new conditions or exacerbate preexisting conditions that would themselves be regarded as disabilities under the ADA. For example, if an employee with COVID-19 develops heart inflammation, suffers acute ischemic stroke, or develops diabetes due to the disease, then each of these conditions may themselves qualify as an actual disability under the ADA.