Coronavirus (COVID-19), HR Management & Compliance

ADA May Protect Workers with COVID-19, New EEOC Guidance Says

Workers who contract COVID-19 can be protected from discrimination under the Americans with Disabilities Act (ADA), according to new Equal Employment Opportunity Commission (EEOC) guidance, issued on December 14, 2021.

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Depending on each worker’s circumstances, the virus can cause afflictions that meet one of the ADA’s three definitions for a “disability,” which cover (1) actual, physical, or mental impairments that substantially limit a major life activity, (2) an employer’s perception that a worker has a disability, or (3) the worker’s record of impairment. Employers must individually assess each employee to determine if the individual meets one of the appropriate definitions.

Examples of possible impairments under the ADA include:

·          Employees diagnosed with COVID-19 who consequently experience multiple-day headaches, dizziness, and brain fog or heart palpitations, chest pain, and shortness of breath that are expected to last several months; and

·          Conditions caused by a previous COVID-19 diagnosis such as (1) heart inflammation limiting circulatory functions or (2) a stroke restricting neurological functions.

Notably, not every person with the virus will qualify as disabled. For example, a worker who tests positive and is asymptomatic or has mild symptoms similar to the flu or the common cold that resolve in a matter of weeks would not qualify.

Key Takeaway

The EEOC guidance specifically connects COVID-19 symptoms and potential “disability” protection under the ADA. As a result, employers must engage in the interactive process to determine the extent of the disability caused by the virus and provide a reasonable accommodation when required.

John T. Below and Gary S. Fealk are attorneys with Bodman PLC in Troy, Michigan. You can reach them at jbelow@bodmanlaw.com or gfealk@bodmanlaw.com.