EEOC Clarifies When COVID-19 May be Covered under the ADA

The Equal Employment Opportunity Commission (“EEOC”) recently updated its guidance to clarify when an individual’s COVID-19 impairment may qualify as a disability under the Americans with Disabilities Act (“ADA”).  In its December 14, 2021 update, the EEOC stated that an individual infected 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.”  A person who is infected with the virus who experiences mild symptoms similar to cold and flu symptoms that resolve in a matter of weeks with no other consequences will not have an actual disability within the meaning of the ADA. For employers, this is important because only an employee with a qualifying disability is entitled to a reasonable accommodation under the ADA.

As always, determining whether an employee’s case of COVID-19 is an actual disability requires an individualized assessment.  However, the EEOC provided some instances in which COVID-19 may substantially limit major life activity and may be a covered disability: 

• An individual who 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.

• An individual 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. 

• An individual 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.

• An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently.

Additionally, a condition caused or worsened by COVID-19 may be a disability under the ADA, regardless of whether the initial case of COVID-19 constituted a disability.  Examples of this include an individual developing heart inflammation, diabetes, or suffering from a stroke after being diagnosed with COVID-19. 

The EEOC also provided examples of instances in which an individual diagnosed with COVID-19 would typically not qualify as having a disability under the ADA:

• An individual who experiences congestion, sore throat, headaches, fever, or GI discomfort which resolve within several weeks and has no further symptoms or effects.

• An individual with mild symptoms that resolve within several weeks.

• An individual who is infected with the virus but is asymptomatic.

The updated guidance emphasizes the importance of a case-by-case assessment of the effect of an individual’s COVID-19 diagnosis and whether it substantially limits one or more major life activities.  If you have questions regarding an individual with COVID-19 seeking a reasonable accommodation under the ADA, please feel free to contact your Robbins Schwartz attorney.