Throughout the pandemic, there’s been uncertainty over whether COVID-19 is considered a disability under the ADA. Luckily, the EEOC recently issued guidance on this matter.
Not every person with COVID-19 will be considered disabled, however, in some circumstances, the virus can meet the ADA’s three-part definition of a disability.
In order for someone to be considered disabled under the ADA, they must fall under one of the following aspects of the official definition:
- “actual disability”
- “record of disability,” or
- “regarded as an individual with a disability.”
It’s up to employers to evaluate each employee on an individual basis to see if they fall under the ADA’s definition.
In order for COVID-19 to be considered an “actual disability,” the person’s symptoms must involve a “physical or mental impairment” that “substantially limits at least one major life activity.”
While COVID-19 can certainly result in a physical or mental impairment, it doesn’t always substantially limit a major life activity. An employer will have to judge how bad an employee’s symptoms are. If the symptoms are similar to that of a common cold or the flu, the person likely doesn’t meet this threshold.
However, when someone has long-term COVID-19 symptoms — such as lingering breathing problems that make any physical activity difficult — the illness now meets the ADA’s definition of a disability.
The EEOC also reiterated that just because an employee has an ADA-qualifying disability doesn’t mean they automatically get an accommodation — and if the employee does need an accommodation, it must be reasonable and not place an undue hardship on the employer.
An employee with COVID-19 could also be protected under the ADA even if they aren’t technically disabled, the EEOC said in the guidance.
For example, if an employer fires an employee because they have COVID-19 symptoms, that violates the ADA because the employee was “regarded as being disabled” and experienced an adverse employment action.
So what is the main takeaway from the EEOC’s guidance for employers? First, they should evaluate each employee with COVID-19 on an individual basis to determine if they may be protected under the ADA.
It’s also important to remember not to violate the ADA by asking medical questions, and to be mindful of confidentiality when collecting COVID-19 information.