On December 14, 2021, the EEOC updated its guidance entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to include a section on how the definition of disability applies to COVID-19.  The section includes helpful Q and A addressing when COVID-19 becomes an actual disability.

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.” As expected, an individualized assessment is necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This is a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances. 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 cold or flu that resolve in a matter of weeks will not be considered disabled under the ADA.  However, some cases might result in a finding of disability. The Guidance provides some helpful examples of when COVID-19 might substantially limit a major life activity:

  • An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.
  • 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 last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.
  • An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.

Conversely, conditions which may not rise to the level of substantially limiting a major life activity include the following:

  • An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.
  • An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.

Whether a condition qualifies as a disability does not depend on whether the symptoms occur intermittently or whether they can be addressed through mitigating measures such as medication or medical devices or treatment.  Also important to note is the fact that other conditions which are caused or worsened by COVID-19 can be disabilities under the ADA.  These might include a person developing diabetes or another chronic disabling condition like heart inflammation due to exposure to the virus.  Similarly, a pre-existing condition worsened by COVID-19 may move from non-disability to disability status.

Several points are important to remember.  The rules with regard to ADA applicability are the same regardless of the physical or mental condition being evaluated.  The condition must be a disability under the ADA to require reasonable accommodation or other protections.  The analysis should be an individualized one completed through an interactive process with supporting medical documentation.  The definition of disability is broad, but even if the condition is not a disability, protections may be available to the employee through other laws such as the FMLA or a state paid family and medical leave act.

When the analysis is complicated, it is beneficial to consult with your employment counsel to assist in assessing and documenting your decision-making process.