Benefits and Compensation, HR Management & Compliance

Is COVID-19 a Disability Under the ADA? It Depends

The Equal Employment Opportunity Commission (EEOC) recently released guidance regarding whether COVID-19 is a disability under the Americans with Disabilities Act (ADA). Under the ADA, an employer cannot take an adverse employment action against an individual because of a disability, which is a physical or mental impairment that substantially limits a major life activity. The EEOC stated COVID-19 is a physical or mental impairment. The question is, does it substantially limit a major life activity? The answer to that question is, it depends.

When COVID-19 Would Be a Disability

The EEOC guidance identifies circumstances in which the EEOC would consider COVID-19 to be a disability. Examples include:

  • An employee diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the individual’s doctor attributes to the virus;
  • An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to continue, for several months;
  • A person who has been diagnosed with COVID-19 and experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to persist, for several months; and
  • An individual diagnosed with “long COVID” who experiences virus-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently.

When Virus Wouldn’t Be a Disability

Examples of circumstances when the EEOC wouldn’t consider COVID-19 to be a disability include the following:

  • An individual diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but no further symptoms or effects; and
  • An individual infected with the virus causing COVID-19 but who is asymptomatic.

Other Considerations

The EEOC noted that in some instances, while not a disability itself, COVID-19 can create (or exacerbate) other health conditions that result in the employee being disabled for ADA purposes. For example, the virus may cause an individual to experience heart inflammation (or make an existing minor heart condition worse), suffer a stroke, or develop diabetes. In those instances, the employee will be considered to be disabled under the ADA.

The EEOC explained that, as with all disabilities, employers may request medical certification of the employee’s disability in responding to any accommodation requests by the individual when the need for accommodation is not obvious or already known. Further, employers are free (but not required) to accommodate the requests of employees with COVID-19 in circumstances where the illness itself doesn’t constitute a disability and hasn’t led to another impairment becoming a disability under the ADA.

Sean Monson is an attorney with Parsons Behle & Latimer and can be reached at smonson@parsonsbehle.com.