Is COVID-19 a “disability” under federal laws banning disability discrimination?
The frustratingly noncommittal but accurate answer: It depends.
But the lack of a black-and-white, clear-cut answer to the question is no reason to avoid it.
In fact, it’s even more reason to learn when COVID-19 is likely to qualify as a disabling condition, and when it’s not.
Why It Matters
Why is it important to know when COVID-19 qualifies as a disabling condition?
Because having a disability entitles applicants and employees to all the legal protections that designated status provides. That potentially includes the right to reasonable accommodation.
It’s in the best interest of employers to understand how the feds view the question.
Last month, the EEOC issued updated technical assistance guidance. The guidance addresses when COVID-19 qualifies as a disability under the ADA and Rehabilitation Act.
Here’s a pop quiz derived from the updated guidance. It tests your knowledge of COVID-19 as a disability.
Question 1: Is COVID-19 always a disability under the ADA and Section 504?
Answer: No. A person can show the existence of a disability under the law in one of three ways. First, they can show that they actually have a physical or mental impairment that substantially limits at least one major life activity. Second, they can show they have a record of a disability, such as cancer in remission. Third, an employer can regard an applicant or employee as having a disability. Whether COVID-19 is an actual disability requires an individualized assessment.
Question 2: If side effects of COVID-19 medication substantially limit a person, does that person have a disability?
Answer: Yes. With respect to “mitigating measures” – namely, anything done to treat the virus – there are two important points to keep in mind. First, “whether COVID-19 substantially limits a major life activity is determined based on how limited the individual would have been without the benefit of any mitigating measures,” the guidance says. At the same time, any negative side effects of a mitigating measure do count. Translation: Associated medical treatment can cause a substantial limitation.
Not A Blank Check
Question 3: If a person’s COVID-19 is a disability, does that mean an employer can’t take adverse action against them?
Answer: No. The presence of a disability does not insulate any applicant or employee from adverse job actions. For example, an employee with COVID-19 that qualifies as a disability can be fired for poor job performance (assuming no reasonable accommodation would help) or disciplined for job-related misconduct.
Question 4: If an employee with COVID-19 that qualifies as a disability asks for reasonable accommodation, can an employer ask for documentation?
Answer: Yes. Any time a disability or need for accommodation is not obvious or known, the employer may lawfully ask for documentation about the disability and/or need for accommodation. It can either ask the employee to supply the information or ask the employee to sign a release allowing it to contact the employee’s health care provider directly.
Question 5: Are all employees who show that their COVID-19 is a disability entitled to reasonable accommodation?
Answer: No. Employees who show the existence of a disability by showing either an actual disability or a record of disability are entitled to reasonable accommodation. But those who show they have a disability under the law because they were regarded as having a disability are not entitled to reasonable accommodation.