COVID-19 May Constitute a Disability Under the ADA

January 7th, 2022

As we continue to grapple with COVID-19 and its everchanging variants, the EEOC has updated its guidance on determining if COVID-19 constitutes a disability under the Americans with Disabilities and the Rehabilitation Act (“ADA”). Released on December 14, 2021, the guidance states that, under certain circumstances, COVID-19 may constitute a disability under the ADA.

To be considered to have a disability under the ADA, an individual must have a physical or mental impairment that substantially limits a major life activity. The EEOC’s updated guidance walks through the ADA’s definition of a disability under the context of COVID-19.

First, the EEOC had no difficulty concluding that COVID-19 is a physical or mental impairment, as it is a “physiological condition affecting one or more body systems.”

Next, the EEOC explained that, under certain circumstances, COVID-19 affects a major life activity. In particular, the EEOC recognized that “COVID-19 may affect major bodily functions, such as functions of the immune system, special sense organs (such as for smell and taste), digestive, neurological, brain, respiratory, circulatory, or cardiovascular functions, or the operation of an individual organ. In some instances, COVID-19 also may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others.” However, some individuals who test positive for COVID-19 are asymptomatic. For those individuals diagnosed with COVID-19 who experience few if any symptoms, the EEOC would not consider them to be disabled under the meaning of the ADA. Please note – the disability status under the ADA has no bearing on whether a person needs to isolate or quarantine, thus contact a medical professional or the CDC for guidance.

Finally, on whether COVID-19 substantially limits a major life activity, the EEOC acknowledged that the ADA’s language should be interpreted broadly – stating that COVID-19 doesn’t need to prevent a person from entirely performing a major life activity. Instead, the definition merely requires a showing that COVID-19 (or the symptoms arising from COVID-19) substantially limits an individual’s ability to perform the major life activity. The EEOC further confirmed that the limitations from COVID-19 do not need to be permanent, but still warned that the limitations must be present or be expected to be present for longer than a short period of time in order to be covered.

As the EEOC’s guidance stresses, an individualized assessment is required in order to determine whether an individual’s COVID-19 diagnosis constitutes a disability. To further aid in this analysis, the EEOC provided the following examples:

Impairments that Substantially Limits a Major Life Activity

Examples of Individuals with an Impairment that Substantially Limits 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.
An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA.

Impairments that Do Not Substantially Limit a Major Life Activity

Examples of Individuals with an Impairment that Does Not Substantially Limit a Major Life Activity

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.

If you have questions about whether your specific COVID-19 symptoms constitute a disability, the skilled attorneys at Halunen Law stand at the ready and are committed to fighting against all types of discrimination in the workplace. To consult with an attorney about your rights, please contact us today.

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