Cavitch Familo & Durkin, Co., L.P.A.
 

EEOC Updated Guidance: COVID-19 As a Disability

   

Written By: Max Dehn & Madilyn Bell

On December 14, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 Technical Assistance, addressing under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.

In general, determining whether long-term COVID-19 symptoms are a disability will depend on the facts of the particular case. This is especially true considering COVID-19 affects individuals very differently.

However, there are several key takeaways for employers and employees alike to consider when navigating COVID-19 in the workplace from a disability standpoint:

  • In some cases, the effects of COVID-19 may be an actual disability under the ADA, e., a “physical or mental impairment that substantially limits one or more major life activities.” For example, an individual who experiences lingering “COVID headaches” could have trouble thinking, concentrating, and/or working, among other major life activities.
  • An individual may be “regarded as” disabled if such person is subjected to an adverse employment action because the person has or is perceived as having COVID-19 or a lingering effect, unless the actual or perceived impairment is transitory (lasting less than 6 months) and minor. For this analysis, whether the actual or perceived disability substantially limits a major life activity is irrelevant.
  • A person may have a “record of” disability if they have or had COVID-19 because they could arguably have a record of an impairment that substantially limits one or more major life activities.
  • Conditions caused or worsened by COVID-19, in some cases, could be a disability.

Although EEOC guidance is not binding court precedent, the guidance is helpful for employers to navigate COVID-19 in the workplace while these issues are litigated. If you have questions about COVID-19 and the ADA, contact Cavitch employment attorneys Max E. Dehn (mdehn@cavitch.com) and Madilyn M. Bell (mbell@cavitch.com).