COVID-19 and its related health conditions may now be considered a disability under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. On December 14, 2021, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance on when individuals diagnosed with COVID-19 or a post-COVID health condition may be considered to have a disability under the definition under Title I of the ADA or Section 501 of the Rehabilitation Act. Title I of the ADA prohibits both public and private employers (with 15 or more employees) from discriminating against employees with disabilities. It also requires that employers provide the aforementioned employees with reasonable accommodations in the application/hiring process and/or on the job. Section 501 of the Rehabilitation Act provides similar protections for federal employees. The EEOC indicates that the determination of whether COVID-19 is a disability will be decided on a case-by-case basis. Specifically, it will depend on whether or not the individual’s medical condition or any of the symptoms “is a ‘physical or mental’ impairment that ‘substantially limits one or more major life activities.’” Stated differently, an individual who is asymptomatic, or who only experiences mild symptoms with no other consequences, will not be considered “disabled.”
On the other hand, an individual experiencing symptoms associated with “Long Covid,” (i.e., the lingering health conditions associated with COVID-19), may be considered “disabled.” Furthermore, even if COVID-19 or the health conditions resulting from COVID-19 could be considered a disability, it does not automatically entitle an employee to reasonable accommodations from their employer. Accommodations will be provided “when their disability requires it, and the accommodation is not an undue hardship for the employer.” (Covid-19 Technical Assistance, 2021) This new guidance makes clear that a COVID-19 diagnosis or related symptoms will, in certain circumstances, require employers to engage in an interactive dialogue with the impacted employee to determine whether a reasonable accommodation is needed and available.