On December 14, 2021, the Equal Employment Opportunity Commission (EEOC) issued clarifying guidance on which “Long COVID” symptoms afford protections for applicants and workers under the federal Americans with Disabilities Act (ADA). The ADA covers employees with 15 or more employees, but some states have analogous statutes that cover smaller workplaces and rely on federal definitions.
A person can be an individual with a “disability” for purposes of the ADA in one of three ways:
“Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function);
“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.
These same criteria are applied when analyzing a situation involving an applicant or employee who has experienced COVID-19 and has lingering symptoms. The link to the EEOC guidance, which includes additional information on the interface between COVID-19 and other employment laws (e.g., HIPAA, GINA, and religious protections under the Civil Rights Act) is: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#N. This site is updated regularly and should be monitored to ensure continued compliance.
Key information in the revised guidance:
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.
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.
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.
Related to the EEOC guidance is the July 26, 2021, the Department of Justice (DOJ) and the Department of Health and Human Services (HHS)’ “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557” (DOJ/HHS Guidance). The CDC uses the terms “long COVID,” “post-COVID,” “long-haul COVID,” “post-acute COVID-19,” “long-term effects of COVID,” or “chronic COVID” to describe various post-COVID conditions, where individuals experience new, returning, or ongoing health problems four or more weeks after being infected with the virus that causes COVID-19.
According to the EEOC, 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.” An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA.
A key consideration is whether the condition limits any of the person’s “Major life activities,” which include both major bodily functions, such as respiratory, lung, or heart function, and major activities in which someone engages, such as walking or concentrating. COVID-19 may affect such bodily functions, including the immune system, special sense organs (such as for smell and taste), digestive, neurological, brain, respiratory, circulatory, or cardiovascular functions, or the operation of an individual organ. Long COVID-19 also may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others. An impairment need only substantially limit one major bodily function or other major life activity to be substantially limiting. However, limitations in more than one major life activity may combine to meet the standard.
Whether COVID-19 substantially limits a major life activity is determined based on how limited the individual would have been without the benefit of any mitigating measures–i.e., any medical treatment received or other step used to lessen or prevent symptoms or other negative effects of an impairment. At the same time, in determining whether COVID-19 substantially limits a major life activity, any negative side effects of a mitigating measure are taken into account. These include medication or medical devices or treatments, such as antiviral drugs, supplemental oxygen, inhaled steroids and other asthma-related medicines, breathing exercises and respiratory therapy, physical or occupational therapy, or other steps to address complications of COVID-19. Even if the symptoms related to COVID-19 come and go, COVID-19 is an actual disability if it substantially limits a major life activity when active.
In addition, a person who has or had COVID-19 can be an individual with a “record of” a disability if the person has “a history of, or has been misclassified as having,” an impairment that substantially limits one or more major life activities, based on an individualized assessment. Therefore, if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19, or the employer mistakenly believes the person has such an impairment, they will also have protections under the ADA.
Finally, regardless of whether an individual’s initial case of COVID-19 itself constitutes an actual disability, an individual’s COVID-19 may end up causing impairments that are themselves disabilities under the ADA. These include heart inflammation, stroke, adverse neurological or brain function, or even diabetes. COVID-19 may also exacerbate pre-existing conditions to the point where the condition is now covered under the ADA.
If an individual contracts COVID-19 at work, OSHA now requires recording of the condition on the employer’s 300/301 logs. Work-related COVID-19 cases that result in hospitalization or death must now be reported to OSHA, regardless of the time elapsing between the workplace exposure event and the hospitalization or death. This is a variation from normal protocol (where hospitalization must occur within 24 hours of the triggering event to be reportable, and fatalities must occur within 30 days of the workplace event).
The change in OSHA reportability, coupled with the EEOC and DOJ/HHS definitions of Long COVID-19 as potentially permanently disabling condition, has additional implications now and in the future under state worker’s compensation laws.
For assistance in workplace COVID-19 prevention policies or OSHA defense, contact Adele Abrams at safetylawyer@gmail.com.
