On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its existing COVID-19 guidance by adding a new FAQ section titled “COVID-19 and the Definition of “Disability” Under the ADA/Rehabilitation Act.” These new FAQs focus broadly on COVID-19 in the context of ADA employment protections and the impact for employers under the law.
As a quick refresher, the ADA’s three-part definition of disability applies to COVID-19 in the same manner as any other medical condition, which include:
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“Actual” disability: physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function);
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“Record of” a disability: history or “record of” an actual disability (such as cancer that is in remission); or
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“Regarded as” an individual with a disability: subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.
The ADA uses a case-by-case, individualized assessment approach to determine if an employee with COVID-19 satisfies any one of the three “disability” definitions listed above. Individuals must meet either the “actual” or “record of” definitions of disability to be eligible for a reasonable accommodation under the ADA.
Examples within the guidance that would not be considered an “actual” disability under the ADA include an individual diagnosed with COVID-19 who is asymptomatic or one with mild symptoms similar to those of a common cold or flu, which fully resolve within several weeks with no further symptoms or effects. On the other hand, the guidance provides several examples of COVID-19-related complications, which can last for several months (even intermittently), and substantially limit an individual’s neurological, respiratory, cardiovascular, circulatory and/or gastrointestinal functions, that all may constitute an “actual” disability under the ADA.
The guidance also clarifies that a COVID-19 diagnosis could cause a new condition or worsen a pre-existing condition that was not previously substantially limiting but now is, such as a heart condition worsened by COVID that substantially limits an individual’s circulatory function. Examples of conditions that are caused and attributed to COVID include the development of heart inflammation, acute ischemic stroke or diabetes. These conditions may all constitute a disability under the ADA.
The FAQs also explain the risks of certain adverse employment actions, which may violate the ADA even if an individual only had COVID-19 in the past (“record of” disability) or is mistakenly believed to have COVID-19 (“regarded as” having a disability).
Finally, employers should be mindful that the ADA’s requirements about disability-related inquiries and medical exams, medical confidentiality, retaliation, and interference apply to all applicants and employees, regardless of whether they have an ADA disability.
This updated EEOC guidance should be considered as employers continue to develop policies with respect to employees’ vaccination status and COVID-19 testing.
