On December 14, 2021, the Equal Employment Opportunities Commission (EEOC) released Guidance on when Covid-19 is considered a disability under the Americans with Disabilities Act (ADA). Under the ADA, an employee is considered an “individual with a disability” if (1) s/he has an actual disability, (2) s/he has a record of having a disability, or (3) if s/he is regarded as having a disability.
Covid-19 can be an actual disability if an employee has new, ongoing, or recurrent symptoms attributable to Covid-19 that lasts weeks or months after being infected with Covid-19 (known as “Long Covid-19”). In some cases, an employee can also have an actual disability if s/he has a sufficiently severe case of Covid-19 for a short period of time or if the initial case of Covid-19 substantially worsens an existing condition. Conversely, if an employee has Covid-19 and is asymptomatic or has mild symptoms (similar to the cold or flu) that subside in a few weeks – s/he does not have an actual disability under the ADA.
An employee has a record of having a disability if s/he has a history of having Long Covid-19. For example, an employee who had Long Covid-19 and recovered has a record
of having a disability. (Oddly enough, an employee could have a “record of” a disability even if s/he was misdiagnosed as having Long Covid-19.)
Finally, an individual can be regarded as having a disability if the employee is fired, not hired, harassed, or otherwise subjected to an adverse employment action because the employee has Covid-19, or even if employer mistakenly believes the employee has Covid-19. An employee can be regarded as having a disability if their actual or perceived impairment is a sufficiently severe case of Covid-19 or Long Covid-19. However, an employee is not regarded as having a disability if the employee’s actual or perceived impairment lasts, or is expected to last, six months or less and is minor.
An employer who takes an adverse employment action against an employee because the employee has Covid-19 will not violate the ADA if the employee poses a “direct threat.” For example, if an employee has symptoms of Covid-19 and wants to work at their desk, the company can lawfully prohibit the employee from coming to work because of their symptoms. In this instance the company has not violated the ADA because the sick employee poses a “direct threat” to coworkers.
If an employee qualifies as an individual with a disability because s/he has an actual disability or has a record of having a disability, the employer must provide the employee with reasonable accommodations. Employers should review their company policies to allow for accommodations likely to be requested by individuals suffering from Long Covid-19 or Covid-19-related disabilities (e.g., alternative schedules, remote work, or leave, if necessary). Employers should also be diligent about speaking to all employees who suggest they are struggling with the long-term effects of Covid-19.
Finally, employers should continue to train supervisors and managers on how to deal with Covid-19-related requests for accommodation.
If you have any questions about when you are required to accommodate employees with Covid-19, please contact Nicole Gardner or Erin Ball.