EEOC Releases Updated Guidance Clarifying When COVID-19 May Constitute a Disability

CATEGORY: Special Bulletins
CLIENT TYPE: Nonprofit, Private Education, Public Education, Public Employers, Public Safety
PUBLICATION: LCW Special Bulletin
DATE: Dec 27, 2021

On December 14, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) released guidance clarifying the circumstances under which a COVID-19 case may constitute a disability under federal equal employment opportunity (“EEO”) laws, including the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.[1]

Employers now have guidance from the EEOC for how to respond to employee requests for disability accommodations related to COVID-19. Employers should apply the ADA definition of “disability,” as discussed in this bulletin, as well as the more liberal and inclusive definition under California’s Fair Employment and Housing Act (“FEHA”), in order to assess employee qualifications for engagement in the interactive process.

I. General ADA Rules Apply to COVID-19

The EEOC guidance provides that the ADA’s existing three-part definition for “disability” applies to COVID-19 as it does to other health and medical conditions. Specifically, an employer should consider an applicant or employee who has COVID-19 or who has recovered from COVID-19 as disabled if they satisfy one or more of the following three criteria:

  • “Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (e.g., walking, talking, seeing, hearing, or learning, or operation of a major bodily function). As discussed below, employers should note that California’s FEHA uses a broader definition of “disability”;
  • “Record of” a Disability: The person has a history or “record of” an actual disability (e.g., a record of cancer that is currently in remission); or
  • “Regarded as” an Individual with a Disability: The person is subject to an adverse employment action because the person is regarded as being disabled due to an actual impairment or an impairment that the employer perceives, even if there is not actually an impairment. Impairments that are transitory (i.e., lasting or expected to last six months or less) and minor do not qualify.[2]

Actual Disability Under ADA and FEHA

                    Lower Standard for Determining What Constitutes an “Actual Disability” Under the FEHA

For employers covered by the FEHA, the standard for determining whether an impairment qualifies as an “actual disability” is lower than under the ADA. The definition of “disability” under the FEHA does not require that the impairment substantially limit a major life activity, only that it limit such activity.[3]

The FEHA definition is more inclusive and protects more individuals. As a result, more individuals will qualify for the interactive process under state law than under federal law, and employers should keep these different standards in mind when assessing employee qualifications for the interactive process.

Under the FEHA standard, a COVID-19 case would constitute an actual disability if the effects of the case, even if episodic, limit a major life activity. An asymptomatic or mild case of COVID-19, which does not impact the individual’s major life activities, would not qualify as a disability under the less stringent California standard.

Examples of COVID-19 effects that may constitute actual disabilities include, but are not limited to, the following: (1) intermittent multiple-day headaches, dizziness, brain fog, difficulty remembering, concentrating, and other neurological effects; (2) difficulty breathing, shortness of breath, fatigue, and other respiratory effects; (3) heart palpitations, chest pain, shortness of breath and other cardiovascular effects; and (4) intestinal pain, vomiting, and nausea and other gastrointestinal effects.

                  Conditions Worsened by COVID-19 Under the FEHA

In some cases, COVID-19 may cause an individual to develop impairments that are disabilities under the ADA and the FEHA. COVID-19 may also worsen an individual’s pre-existing condition that results in limiting a major life activity.[4]  For example, if an individual who had COVID-19 develops heart inflammation, this inflammation may be an impairment that limits a major life activity, such as lifting, and therefore constitutes a disability under the FEHA. Additionally, COVD-19 may cause an individual with a pre-existing heart condition that was not previously limiting to worsen, so that the condition results in limiting that person’s circulatory function.[5]

COVID-19 “Regarded as” a Disability Under the ADA

Under the ADA definition, individuals may be “regarded as” disabled if an employer takes an adverse employment action against those individuals because they had COVID-19, or because the employer mistakenly believed the individuals had COVID-19. It is important to note that the EEOC does not consider an impairment to be a disability if the impairment is both transitory (i.e., lasting or expected to last six months or less) and minor.

As a result, it would be impermissible for an employer to fire an employee because of the employee’s minor, but long-lasting COVID-19 symptoms. It would also be unlawful for an employer to fire an employee if the employee had a COVID-19 case and experienced non-minor symptoms that lasted less than six months.[6]

II. Treatment of Employees Who Claim COVID-19 as a Disability

Employers should treat employees who have a disabling COVID-19 case or a COVID-19-related disability like other employees who have impairments that limits one or more major life activity.

Employers may request supporting medical documentation before engaging the employee in the interactive process.  Once the employer has the necessary information to determine that the employee’s COVID-19 case constitutes a disability, the employer must engage such employee in the interactive process in order to determine if the employer can accommodate the employee in a manner that would allow the employee to perform the essential job functions and not impose an undue hardship on the employer or its operations or pose a direct threat to the employee or others with whom the employee may interact.

LCW attorneys are familiar with legal obligations related to requests for accommodation and the interactive process. We are actively monitoring legal developments related to COVID-19 cases and the circumstances under which such cases may constitute a disability.

[1] U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Technical Assistance Q&A, Section N, available at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=#N (last visited December 15, 2021).

[2] Id.

[3] Gov. Code § 12926.1, subds. (c), (d)(2).

[4] Id. at N.9.

[5] Id.

[6] U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Technical Assistance Q&A, N.6, available at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=#N (last visited December 20, 2021).

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