Megan Mechak
Wed, 12/15/2021
On December 14, 2021, the EEOC updated its COVID-19 guidance to address disability protections for those experiencing COVID-19. In July, the Department of Justice and the Department of Health and Human Services issued “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557.” This guidance is intended to be broader than the DOJ/HHS Guidance.
EEOC’s updated guidance confirms that the Americans with Disability Act (“ADA”) applies to COVID-19 in the same way the ADA applies to any medical condition. As with all medical conditions, the EEOC confirmed that determining whether COVID-19 is a disability requires a case-by-case analysis. The EEOC noted, “[a] person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in 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.” The EEOC clearly stated that COVID-19 is not always an actual disability under the ADA.
A person is an individual with a “disability” for purposes of the ADA if one or more of three scenarios applies to them:
- Actual Disability: The EEOC explained, “a person with COVID-19 has an actual disability if the person’s medical condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits one or more major life activities.’”
- “Record of” a Disability: An individual who has or had COVID-19 may be an individual with a “record of” a disability if the person has a history or, or has been misclassified, as having a disability due to COVID-19.
- “Regarded as” an individual with a Disability: Finally, the EEOC noted that a person may be “regarded” as an individual with a disability if they are subjected to an adverse action because of an actual impairment or because their employer mistakenly believes the person has an impairment.
The EEOC’s newest guidance also confirmed that a condition that is caused or worsened by COVID-19 can be a disability under the ADA, even if the individual’s initial case of COVID-19 would not itself constitute an actual disability.
For more COVID-19 resources for workers, visit MSE’s website at https://www.mselaborlaw.com/resources/coronavirus-information. If you believe your employer has discriminated against you because of a disability, contact MSE at info@mselaborlaw.com.
