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EEOC Clarifies that COVID-19 May Be a Disability under the ADA and Rehabilitation Act


EEOC Updates Its COVID-19 Technical Assistance Guide and provides examples of how a diagnosed individual may be considered to have a disability

On December 14, 2021, the Equal Employment Opportunity Commission (EEOC) has provided another update to its COVID-19 Technical Assistance Guide, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.  The new addition, Section N, provides guidance as to whether COVID-19 is a disability under the ADA and/or Section 501 of the Rehabilitation Act.  The update provides examples illustrating how an individual diagnosed with COVID-19 or a post-COVID condition may be considered to have a disability under the laws covered by EEOC. 

The guidance indicates that a person with COVID-19 can be either: (1) a person with an actual disability under the ADA, (2) a person who has a record of having a disability under the ADA, or (3) a person who is regarded by the employer as having a disability under the ADA.  In all of these situations, the ADA protects such an individual, applicant or employee, from adverse actions.

According to the EEOC press release, the key information in the new guidance includes:

  • In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.
  • An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks—with no other consequences—will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.
  • Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer. But, employers can choose to do more than the ADA requires.
  • An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

Dealing with COVID-19 and the ADA or Rehabilitation Act can be a slippery slope.  Employers would be wise to apply the standard ADA rules when considering whether a person with COVID-19 is a person with a disability.  Under ADA rules, employers have the right to seek medical documentation when applicants or employees seek a reasonable accommodation under the ADA based on a COVID-19 diagnosis.  However, employers want to ensure that the request for a doctor’s note should be applied evenly among COVID-19 cases and other disability related situations. 

The foregoing has been prepared for the general information of clients and friends of Workplace Dynamics LLC and is not being represented as being all-inclusive or complete. It has been abridged from legislation, administrative ruling, agency directives, and other information provided by the government. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.