On December 14, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID related guidance: “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to address when COVID-19 may qualify as a disability under the Americans with Disabilities Act (“ADA”).

The updated guidance makes clear that the ADA’s three-part definition of disability (i.e., “actual” disability, “record of” disability; and “regarded as” disability) applies to COVID-19 in the same way it applies to any other medical condition:

  1. Actual Disability: COVID-19 is an actual disability if it results in a mental or physical impairment that substantially limits one or more major life activities. Whether COVID-19 is an actual disability requires an individualized assessment of the facts and circumstances. The EEOC provides the following example illustrating how COVID-19 might be an actual disability:

An individual diagnosed with COVID-19 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, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.

  1. Record of Disability: COVID-19 may be a disability if an individual has a history or record of it causing a mental or physical impairment that substantially limited one or more major life activities.
  2. Regarded as Disability: An individual may be regarded as having a disability if the person is subject to an adverse action because the person has COVID-19 or the employer mistakenly believes the person has COVID-19, unless it is objectively transitory (i.e., lasting or expecting to last six months or less) and minor. If regarded as having a disability, it is irrelevant whether COVID-19 substantially limits a major life activity. To illustrate “regarded as” disability, the EEOC provides the following example:

An employer would regard an employee as having a disability if the employer fires the individual because the employee had symptoms of COVID-19, which, although minor, lasted or were expected to last more than six months. The employer could not show that the impairment was both transitory and minor.

In sum, COVID-19 can qualify as a disability. However, the existence of a disability is one step in the ADA analysis. It does not necessarily mean that an individual is entitled to reasonable accommodations. We encourage you to consult with an attorney for guidance on the ADA or reasonable accommodation questions.

If you have additional questions about the EEOC Guidance or other labor & employment issues related to COVID-19, feel free to contact Jeffery Wells at JWells@williamskastner.com.