Accommodate Before You Terminate: COVID May Be a Disability Under the ADA
It’s easy to conceptualize COVID-19 by the symptoms it is known to cause, which range from loss of smell/taste to difficulty breathing to common-cold-like symptoms to no symptoms at all. These symptoms not only indicate that an employee is infected with the virus causing COVID-19 but, according to new guidance released by the EEOC, these symptoms may also indicate that an employee with COVID-19 has an actual disability that requires a reasonable accommodation. (The EEOC guidance applies to applicants and employees).
Is It Just COVID Or Is It Also a Disability?
COVID-19 is not always considered a disability under the Americans with Disabilities Act (ADA). For example, the EEOC does not consider an asymptomatic employee or an employee with mild symptoms, such as those experienced with the common cold or flu, as an employee has an actual disability under the ADA. Whether COVID-19 triggers ADA protection depends on each employee’s particular medical condition.
Importantly, the ADA has not been expanded to include COVID-19 as a disability. Rather, the same ADA inquiry applies that otherwise would apply to any other disability. Employers should therefore perform an individualized assessment to determine whether the employee infected with the virus causing COVID-19 has a physical or mental impairment that substantially limits one or more major life activities or major bodily functions. Because COVID-19 is a physiological condition affecting one or more body systems, it meets the definition of a physical or mental impairment under the ADA. As symptoms have indicated, COVID-19 can affect major life activities, such as breathing or thinking, and major bodily functions, including lung and heart functions. For some, these symptoms are constant and persist for five or more days. For others, symptoms are episodic and tend to come and go. Regardless of how symptoms are experienced, when these effects are substantially limiting to one or more major life activities or major bodily functions, that employee may be protected under the ADA.
When is COVID-19 Substantially Limiting?
Employers should not feel the need to become an expert on the physical or mental limitations of COVID-19 to determine whether an infected employee has a covered disability. The EEOC does not require an extensive analysis of the “substantially limiting” inquiry.
Just like any other disability, whether COVID-19 is substantially limiting is construed broadly. In fact, it is so broadly construed that COVID-19 need not prevent, or significantly or severely restrict a person from performing major life activities to be considered substantially limiting under the ADA. Additionally, no time limitations are imposed for COVID-19 to be considered substantially limiting. Even impairments lasting only a short period of time, which are generally not covered, could be covered if sufficiently severe.
Employers are also prohibited from considering any mitigating measures when inquiring as to whether COVID-19 substantially limits a major life activity. Mitigating measures include medication, antiviral drugs, and respiratory therapy, to name a few. Employers should however consider any negative side effects of mitigating measures as those could be a disability under the ADA.
COVID-19 As A Disability for The Non-Infected
COVID-19 may also trigger ADA protections when an employee has a “record of” a disability. This typically occurs when an employee either has a history of having COVID-19 or has been misclassified as having COVID-19.
An employee who is “regarded as” having COVID-19 may also be protected under the ADA. An employee can be regarded as having a COVID-19 disability if the person is subject to an adverse employment action because they are infected with COVID-19 or because the employer mistakenly believes the person has COVID-19.
Even if an employee’s COVID-19 infection is not considered as a disability while infected, that employee may later qualify for protections under the ADA if they develop impairments that are themselves considered disabilities. For example, an asymptomatic employee’s COVID-19 infection may not initially constitute an actual disability. However, if that employee later develops heart inflammation due to their previous COVID-19 infection, the heart condition could constitute a disability and trigger ADA protections. Similarly, while an employee with mild symptoms may not trigger ADA protections, should that employee develop more severe symptoms, such as suffering an acute ischemic stroke, then ADA protections could be triggered at that time.
Also, as we have previously written, “Long COVID” – a range of symptoms lasting weeks or months after first being infected with the virus causing COVID-19 – may also constitute a disability under the ADA.
Bottom line: For employers, COVID now has additional considerations outside of vaccine mandates and stays and general policy considerations, such as quarantine times. Now, employers must also consider whether applicants and employees infected with the virus causing COVID-19 or those who develop disabling conditions as a result of COVID-19 should be accommodated in accordance with the ADA.