EEOC Clarifies When COVID-19 Is a Disability

The Equal Employment Opportunity Commission (EEOC) is offering employers new guidance as to when, and under what circumstances, COVID-19 can be considered a disability under federal anti-discrimination laws.

The COVID-19 technical assistance applies to the Americans with Disabilities Act (“ADA”), which applies to private employers, and the Rehabilitation Act, which similarly prohibits discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment and in the employment practices of federal contractors.

Highlights from the guidance include the following:

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

On July 26, 2021, the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) issued Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557. The DOJ/HHS Guidance focuses solely on “Long COVID,” which refers to lingering symptoms from a COVID-19 infection, which can last weeks or even months. Common symptoms of “Long COVID” include fatigue, brain fog, loss of smell and taste, coughing and joint or chest pain. This new EEOC technical assistance focuses more broadly on COVID-19.

Please contact Mark Fijman or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance. And for more information related to COVID-19, visit Phelps’ COVID-19 Client Resource Portal.