EEOC: Workers with Disabilities Stemming from COVID-19 May be Protected from Employment Discrimination
By Jordan Brickman
The Equal Employment Opportunity Commission (“EEOC”) released an update to its COVID-19 technical assistance regarding the applicability of Title I of the Americans with Disabilities Act (“ADA”) and section 501 of the Rehabilitation Act to those suffering from COVID-19 related disabilities in employment.[1]
The EEOC makes clear that a diagnosis of COVID-19 will not be dispositive of an actual disability.[2] An individual must still meet either the “actual” or “record of” definitions of a disability to be eligible for a reasonable accommodation, while those who only meet the “regarded as” definition are not entitled to receive reasonable accommodation. A person 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.”
Even with a COVID-19 diagnosis, an applicant’s claim requires an individualized assessment, applying the existing legal standards to the facts of the employee’s particular circumstances. For instance, a person who was infected with COVID-19 but was asymptomatic, or someone who experienced only mild symptoms with no consequences will not have an actual disability under the ADA. However, in some cases, a person may have recovered from the virus, but the consequences of COVID-19 caused or worsened an impairment that is an “actual” disability under the ADA, such as heart inflammation, stroke, or diabetes.
When the disability or need for accommodation is not obvious or already known, an employer is entitled to request medical documentation of an applicant to ascertain a reasonable accommodation. If the employee does not cooperate in providing the requested reasonable supporting medical information, the employer can lawfully deny the accommodation request.
Takeaway
A person infected or previously infected with COVID-19 will not automatically be eligible for reasonable accommodation under the ADA. To receive reasonable accommodation, the applicant must still show an “actual” or “record of” disability under the ADA, “regarded as” will not alone be sufficient. The EEOC’s guidance has not displaced the need for an individualized assessment of the circumstances and the applicant’s need. Call the experienced Employment Law attorneys at Campbell Litigation to discuss your company’s options in these uncertain times.
[1] This update clarifies earlier guidance released by the U.S. Department of Justice which only considered long covid in the context of Titles II and III of the ADA, Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Patient Protection and Affordable Care Act. See Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557; Guidance on "Long COVID" as a Disability Under the ADA, Section 504, and Section 1557, last visited December 16, 2021.
[2] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws; What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov), last visited December 16, 2021.