EEOC Updates Guidance To Explain That COVID-19 Can Be A Disability

The U.S. Equal Employment Opportunity Commission (EEOC) has again updated its COVID-19 Technical Assistance Guidance to add a new section (Section N) clarifying under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (ADA). While the EEOC references the guidance published in July 2021 by the Department of Justice and the Department of Health and Human Services which explained how “long COVID” can be a disability, the EEOC’s guidance more broadly addresses COVID-19 and relates specifically to employment.

The EEOC’s new guidance explains that “[a] person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA.” The EEOC states, however, that COVID-19 can constitute a disability if it substantially limits a major life activity, an analysis that requires a case-by-case, individualized assessment by the employer. The EEOC provides several examples for employers and stresses that if an employee’s symptoms are episodic, the employer should focus on whether such symptoms are substantially limiting when they are active.

The EEOC also stresses that even if an initial case of COVID-19 does not constitute a disability, it may cause impairments that are disabilities under the ADA. For example, an employee who develops heart inflammation or diabetes after COVID-19 may be considered disabled if that impairment is substantially limiting. Additionally, COVID-19 may cause an existing impairment to worsen and become a disability for an employee.

We encourage all employers to review the EEOC’s new guidance and contact a KZA attorney with any questions you may have. As always, we are available to assist you in determining whether an applicant or employee is disabled under the ADA and entitled to an accommodation. 

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