Is COVID-19 a Disability? EEOC Provides Updated Guidance

On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) added a new section, COVID-19 and the Definition of “Disability” Under the ADA/Rehabilitation Act, to its COVID-19 guidance. The updated guidance describes how the ADA’s three-part definition of disability (actual disability, record of disability or being regarded as an individual with a disability) applies to COVID-19 and the resulting impact on employers’ obligations under the law.

Much of the updated guidance focuses on situations when COVID-19 is, or is not, an actual disability. For example, the guidance confirms that an individual with COVID-19 who is asymptomatic or who experiences “mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks – with no other consequences – will not have an actual disability within the meaning of the ADA.” However, the updated guidance clarifies that situations involving more serious symptoms, particularly those expected to last several months, may constitute an actual disability under the ADA. In addition, the updated guidance confirms that conditions that are caused or worsened by COVID-19 can be an actual disability. The guidance reiterates that only individuals with an actual disability or record of a disability are eligible for reasonable accommodations (assuming the disability requires an accommodation and there is no undue hardship on the employer).

The EEOC’s updated guidance also raises key considerations for employers on the risks of potential “regarded as” disability claims.

Specifically, question N.8 of the EEOC’s updated guidance confirms that an employer does not automatically violate the ADA by taking an adverse action against an individual because they have COVID-19. “The ADA’s “direct threat” defense could permit an employer to require an employee with COVID-19 or its symptoms to refrain from physically entering the workplace during the CDC-recommended period of isolation, due to the significant risk of substantial harm to the health of others.” The guidance goes on to caution, however, that employers risk violating the ADA if they exclude an employee from the workplace based upon “myths, fears, or stereotypes” after the threat has passed (i.e., when an individual is no longer infectious and medically cleared to return to work).  The EEOC’s updated guidance highlights the need for employers to ensure their policies are consistent with current guidance issued by the CDC.

In addition, employers should take note of the EEOC’s reminder at question N.14 that the ADA’s requirements with respect to disability-related inquiries, medical exams, confidentiality of medical information, retaliation and interference apply to all applicants and employees regardless of whether they have a “disability” as defined by the ADA.

As employers work to implement policies and collect information regarding employees’ vaccination status, employers should be mindful of the guidance issued by the EEOC.