HR Policy Association

EEOC Clarifies When COVID May Be an ADA Disability

Published on: December 17, 2021

Authors: D. Mark Wilson

Topics: COVID-19 Employer Issues, Employment Law, Federal Health Care Reform

New guidance on when a post-COVID condition may trigger federal disability protections provides useful examples for employers but does not break any new legal ground.

The new guidance notes that depending on each worker’s circumstances, COVID can meet the Americans with Disabilities Act’s three definitions for a disability, which cover actual physical or mental impairments that substantially limit a major life activity, an employer’s perception that a worker has a disability, or the worker’s record of impairment.

For example, multiple-day headaches, dizziness, and brain fog attributed to the virus constitute an impairment under the ADA.

However, not every person with COVID or post-COVID conditions will qualify as disabled and employers must assess each employee individually.  For example, someone with COVID who is asymptomatic or has mild symptoms that, like the flu, only last a few weeks with no other consequences wouldn’t qualify under the ADA.

What it means:  If an employee has a protected disability, the ADA requires the employer to engage in an individualized interactive process to determine if a "reasonable accommodation" can be provided which could mean working from home, leave, schedule changes, physical modifications to the workplace, or reassignment. 

Outlook:  With a majority of Biden appointees on the Commission in 2022, the agency could change its guidance again to be more protective of such conditions.  Meanwhile, employers’ experiences with COVID under the ADA have been far less challenging than the religious protection under Title VII.

D. Mark Wilson

President and CEO, American Health Policy Institute

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