EEOC Adds New Section to FAQ Guidance When COVID-19 May Be a Disability for Employment Purposes

On July 26, 2021, the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) issued Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557. The DOJ/HHS Guidance focuses solely on long COVID. We had summarized that guidance here.

On Tuesday, December 14, 2021, the EEOC updated its COVID-19 technical assistance adding a new section to clarify under what circumstances COVID-19 (in general, not just long COVID) may be considered a disability under Title I of the Americans with Disabilities Act (ADA) and section 501 of the Rehabilitation Act, both of which cover employment.

Key information includes:

• 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.

Written by: KC Rippstein

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.