Despite the decline in positive COVID-19 cases, employers should remain aware of their ongoing obligations to employees affected by the virus. According to guidance issued by the Equal Employment Opportunity Commission, COVID-19 may qualify as a disability under the ADA. COVID may qualify as a disability because it:
- Is a physical or mental disability – ie. it can result in emotional or mental health conditions and damage to organs and respiratory, nervous, circulatory or cardiovascular systems; and,
- Can significantly limit major life activities, which include concentration, breathing, work, and the function of organs or bodily systems.
To determine if COVID-19 is a disability under the ADA, employers should use the same query that they apply to other known disabilities and medical contraindications. That is, a person with COVID-19 “has an actual disability if the person’s medical condition or any or all of its symptoms are a” physical or mental “impairment that” significantly limits one or more major life activities. “Because COVID-19 affects everyone differently, employers must perform an “individualized assessment” to determine the extent of its impact on a particular employee.
According to the EEOC guidelines, “a person who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to the common cold or flu that disappears within a few weeks – without other consequences – will not have a real disability. within the meaning of the ADA. ” However, employees experience “long COVID” symptoms such as “several days of headache, dizziness, brain fog, and difficulty remembering or concentrating”; difficulty breathing or shortness of breath; palpitations or chest pain; or COVID-19-related bowel pain, vomiting, and nausea may be disabled according to ADA. Employers should also note, though an employee’s COVID-19 symptoms come and go, “COVID-19 is an actual disability if it significantly limits a major life activity when active.”
Considerations and best practices for employers
As a reminder, employers are only required to accommodate one employee known handicap. In other words, before an employer’s duty to provide a reasonable adjustment is triggered under the ADA, the employee must make an appropriate request or the employer must otherwise have sufficient knowledge to alert the employer to a potential problem involving the ADA. In both cases, the parties must participate in an interactive process to identify potential accommodations. Although employers are legally required to participate in the interactive process, they do not have to provide housing if it is unreasonable or if it would impose an unnecessary difficulty on the operation of the business.
Despite the guidance above, employers should expect to see lawsuits on these issues in the coming months. It is unclear whether the courts will “postpone to the administrative position of the wards” or refuse to treat long COVID symptoms as a disability under the ADA. So far, the best practice is to take COVID-19 accommodation requests seriously and participate in an interactive process in good faith with all employees seeking housing.