Long-haul COVID can be a disability. What about other cases? Feds issue new guidance
Federal laws protect employees from workplace discrimination based on their disability, but the pandemic spurred new debate about whether COVID-19 is included — and under what circumstances.
While previous federal guidelines largely considered “long COVID” to be a disability, questions remained about how general cases of COVID-19 are categorized. On Tuesday, Dec. 14, the Equal Employment Opportunity Commission, or EEOC, added a section to its COVID-19 technical assistance addressing exactly that.
The EEOC is a federal agency tasked with safeguarding workplace civil rights laws, which include the Americans with Disabilities Act and Rehabilitation Act.
Both laws bar workplace discrimination based on disability.
“Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws the EEOC enforces,” EEOC Chair Charlotte A. Burrows said in a news release announcing the new guidelines. “Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations.”
Is COVID a disability?
There isn’t a yes or no answer. The EEOC’s definition of disability favors a broad interpretation, but “not every impairment will constitute a disability under the ADA,” the agency said.
Instead, the EEOC said, disabilities should be considered on a case-by-case basis.
The ADA defines a disability one of three ways: an actual disability, record of a disability or regarded as a disability.
▪ Actual: a physical or mental impairment that substantially limits a major life activity.
▪ Record: The person has a history or “record of” an actual disability (i.e. cancer).
▪ Regarded as: an impairment an employer believes the employee has, whether or not it substantially limits a major life activity.
When is COVID-19 not considered a disability?
The agency made it clear that a person who tests positive for the coronavirus and is either asymptomatic or showing mild symptoms and recovers within a few weeks is not considered disabled under the ADA.
But that doesn’t mean every case is barred from qualifying as disability.
When is it considered a disability?
According to the agency, because COVID-19 is “a physiological condition affecting one or more body systems,” it is considered a “physical or mental impairment” under the ADA’s definition of disability.
And if it substantially limits a person’s “major life activities,” it might be covered by the ADA.
When applied to the coronavirus, the EEOC said, “major life activities” includes respiratory, lung and heart functions as well someone’s ability to walk or concentrate — all of which can be impacted by COVID-19.
“An impairment need only substantially limit one major bodily function or other major life activity to be substantially limiting,” the EEOC said. “However, limitations in more than one major life activity may combine to meet the standard.”
“Substantially limits” should also be interpreted broadly, according to the agency. That means a case of COVID-19 doesn’t necessarily have to prevent or restrict a person’s major life activities for it to be considered limiting.
The EEOC also said those limitations don’t need to be long term to qualify.
What are some qualifying examples?
▪ A person diagnosed with COVID-19 who experiences headaches, dizziness, brain fog and difficulty concentrating or remembering.
▪ A person diagnosed with COVID-19 who needs oxygen or experiences shortness of breath and fatigue for several months after contracting the virus that might affect their respiratory functions and ability to walk or exert physical energy.
▪ A person diagnosed with COVID-19 who suffers from heart palpitations, chest pain and shortness of breath for several months after the fact.
▪ A person with “long COVID.”
The EEOC said “congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort” that goes away after a few weeks would not be considered “substantially limiting” under the ADA.
What about my employer?
If an employer takes any sort of adverse employment action against an employee with COVID-19 — regardless of whether major life activities are substantially limited — it could be considered discrimination under the ADA, the EEOC said.
Some exceptions include when the perceived or actual disability lasts or is expected to last less than six months and if it’s otherwise minor.
Examples that would count as an employer regarding a person with COVID-19 as disabled include:
▪ A company fires an employee because they had minor symptoms of COVID-19 that lasted over six months.
▪ A company fires an employee who has COVID-19 with major symptoms that last less than six months.
Is an existing medical condition worsened by COVID-19 considered a disability?
In some cases, yes — as long as the employee can prove it is or became substantially limiting after they had COVID-19, the EEOC said.
Examples include heart inflammation, a stroke that occurs while a person has COVID-19, or diabetes that develops as a result of COVID-19.
My case of COVID-19 is a disability. What now?
Under the ADA, employers are required to provide a reasonable accommodation to employees with a covered disability — as long as it doesn’t present an undue hardship for them.
That could mean offering to change an employee’s schedule, making physical modifications to the workplace, allowing the employee to work remotely, or providing them with modified equipment, the EEOC said.
This story was originally published December 15, 2021 at 3:28 PM with the headline "Long-haul COVID can be a disability. What about other cases? Feds issue new guidance."
