Updated Guidelines From the EEOC Regarding COVID-19 as a Disability Under the ADA

Person at work desk

As published in the March 2022 issue of Riverside Lawyer Magazine.

As we approach our third year dealing with the impact of COVID-19 in the workplace, employers continue to face unprecedented challenges developing and implementing policies to protect themselves, their employees, and their customers and clients.

One question many employers have struggled to understand is whether employees suffering from COVID-19 symptoms—particularly “long covid” or “long-haul covid” symptoms—are entitled to accommodations under Title I of the Americans with Disabilities Act (ADA). In December 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance in the form of a series of questions and answers intended to clarify under what circumstances COVID-19 symptoms meet the definition of “actual” or “record of” a disability for purposes of the ADA. 

The EEOC started by stating the obvious: COVID-19 symptoms must be analyzed under the ADA’s definition of disability just as any other medical condition. Thus, a person with COVID-19 has an “actual” disability only when their symptoms constitute a “physical or mental” impairment that “substantially limits one or more major life activities.” As the EEOC explained, this means that having COVID-19 is not an actual disability if an employee is either asymptomatic or only has cold or flu like symptoms that resolve in a matter of weeks. On the other hand, if an employee has more severe symptoms, then a careful, case-by-case analysis is needed to determine if those symptoms substantially limit a major life activity such that the employee has an actual disability potentially triggering the right to reasonable accommodations.

The EEOC went on to provide some examples of situations in which COVID-19 symptoms would constitute a disability. These primarily involve long covid symptoms, such as intermittent multiple-day headaches, dizziness, brain fog, difficulty remembering or concentrating, and various physical symptoms—such as shortness of breath, heart palpitations, chest pain, intestinal pain, nausea, or vomiting—that last, or are expected to last, for several months. Importantly, the EEOC stressed that these COVID-19 symptoms can be deemed to substantially limit a major life activity even if they only occur intermittently, as long as they are substantially limiting when active. Of course, all of this is subject to individualized assessment and would need to be attributed to COVID-19 by the employee’s physician.

As with any disability, if an employee is suffering from a COVID-19 disability, the employer must engage in an interactive process with the employee to determine whether a reasonable accommodation can and should be provided. On this issue, the EEOC confirmed that an employee’s right to reasonable accommodation remains unchanged by the fact that the disability is based on COVID-19 symptoms as opposed to other disabilities. That means that the employee is entitled to a reasonable accommodation only if it is required by their disability, the employee is qualified for the job with the accommodation, and the accommodation would not pose an undue hardship for the employer.

Of course, although the standard remains the same, the pandemic has changed the accommodation analysis in some circumstances. Perhaps most notably, as addressed by the EEOC in prior updates, the prevalence of remote work arrangements during the pandemic in industries where it was previously considered essential to work in person has made it more difficult for employers to claim that a remote work accommodation would be unreasonable or pose an undue hardship. And, as with any analysis and implementation of reasonable accommodations, the employer must balance the inherent need for individualized assessment with the risk that treating employees differently may lead to a claim of discrimination.

Finally, the EEOC also addressed some COVID-19-specific issues that may arise in analyzing whether certain adverse employment actions would actually constitute discrimination under the ADA. For example, prohibiting an employee from being in the workplace could constitute an adverse employment action. But given the virus’s highly-contagious nature, an employer could rely on the ADA’s “direct threat” defense to justify such an action on the grounds that it is necessary to protect the health of others in the workplace during the period in which an employee is contagious. That said, it is critical that the employer follow CDC-recommended guidelines—and not “myths, fears, or stereotypes”—to determine if it is safe for an employee to remain in, or return to, the workplace.

In conclusion, while the EEOC’s update was much needed and will undoubtedly provide both employers and employees important guidance when navigating the impacts of COVID-19, if we have learned anything over the past two years, it is that this pandemic—and the scientific understanding of it—is constantly evolving. Thus, it will remain critical that every situation be carefully analyzed taking into account the latest guidelines from the EEOC, the CDC, and other federal, state, and local agencies.

Download the March 2022 issue of Riverside Lawyer Magazine here.

Partners Jonathan E. Phillips and Emilie J. Zuccolotto practice complex civil litigation and white collar criminal defense, with a focus on employment disputes and counseling.

About Riverside Lawyer Magazine

The official publication of the Riverside County Bar Association (RCBA), Riverside Lawyer Magazine is published 11 times per year and is distributed to RCBA members, Riverside County judges and administrative officers of the court, community leaders, and others interested in the advancement of law and justice. Learn more about the magazine and read the current issue on the RCBA website here.


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