The U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance today. It added information to clarify when COVID-19 may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
From the EEOC, we now know that:
- In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.
- An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks—with no other consequences—will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.
- Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer. But, employers can choose to do more than the ADA requires.
- An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.
Is COVID-19 A Disability Under The ADA?
The Americans with Disabilities Act, commonly known as the ADA, prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications, and access to state and local government programs and services. Because of the times in which we live, you may be wondering whether COVID-19 is a disability under the ADA.
A few lower-level federal courts have weighed in on the issue. In May 2021, a federal district court in Georgia determined that COVID-19 itself is not a disability. And in recent months, a few other lower courts have agreed.
While right now these courts are saying that COVID-19 isn’t a disability under federal law, remember that this disability analysis is a fact-specific inquiry including:
- a physical or mental impairment that substantially limits one or more major life activities;
- a history or record of such an impairment; or
- a perception by others that the individual in question has such an impairment.
This is something for employers to keep in mind as COVID-19’s Delta variant makes its way across the country.
To date, no New York court has weighed in, so we’re watching this carefully. In the meantime, if you have any questions about the ADA or COVID-19, reach out to the attorneys at The Coppola Firm online or call 716-839-9700. We’re here to help.
