On December 14, 2021, the EEOC updated its Technical Assistance Questions and Answers to provide a framework for analyzing when an employee’s COVID-19 infection qualifies as a disability under the Americans with Disabilities Act. The new guidance makes the important point that determining whether an employee’s COVID-19 infection is a disability must be done on a case by case basis, taking into account the particular limitations that the virus has imposed on the specific employee. The EEOC clarifies that an employee “who is asymptomatic” or an employee “whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences” does not have a disability. However, where the course of the disease leaves the individual with lingering problems that substantially limit a major life activity, colloquially known as “long COVID,” the individual may very well have a disability that requires an analysis of whether providing accommodation is reasonable and not unduly burdensome. The EEOC provides several examples of long COVID situations that it says substantially limit major life activities and are therefore likely disabilities:
- An employee who has ongoing but intermittent multi-day headaches, dizziness, brain fog, and difficulty concentrating, where the employee’s doctor attributes these issues to the virus, is substantially limited in neurological and brain function, among other major life activities.
- An employee who has shortness of breath, associated fatigue, and other COVID-related effects that are expected to last for several months is substantially limited in respiratory function and possibly the major life activity of walking.
- An employee who experiences heart palpitations, chest pain and shortness of breath following COVID infection is substantially limited in cardiovascular function and circulatory function.
- An employee who experiences COVID-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function.
It is important to note that there is no bright-line rule for how long COVID-related symptoms must exist in order for the employee to have a disability, except that the guidance indicates that symptoms which resolve “within several weeks” are insufficient to create a disability. Prudent employers should carefully apply the traditional “individualized assessment” when an employee needs leave beyond his/her FMLA/PTO/sick leave or ask for a change of schedule or job duties due to symptoms that could be considered “long COVID.”