THE LAW FIRM FOR EMPLOYERS
Compliance Matters TM
EEOC Issues Guidance Stating That COVID-19 May Be An ADA-Protected Disability
(COVID-19 Update)
For nearly two years, there has been substantial speculation as to whether COVID-19 constitutes a “disability” under either the Americans With Disabilities Act or California’s Fair Employment and Housing Act that triggers reasonable accommodation and non-discrimination requirements for employers. The wait for an answer is now over.
 
The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its COVID-19 Technical Assistance and provided clarification for this long-awaited determination. The EEOC stated that that there are indeed circumstances wherein a COVID-19 diagnosis may cause physical or emotional effects sufficient to meet the definition of a disability under the Americans with Disabilities Act (“ADA”) .
 
Under the ADA, the broad definition of the term “disability” calls for the term to apply to 4 different circumstances. Incredibly, in 3 of the 4 situations, the employee is not actually disabled. We explain below.
 
(1) Employee/Applicant Is Currently Disabled. This is the one most employers understand. The ADA prohibits discrimination against an employee/applicant who has an “actual” disability because the employee’s medical condition (or any of its symptoms) is deemed a physical or mental impairment that substantially limits a major life activity (some examples of such “life activities” are walking, talking, seeing, hearing, or learning, or operation of a major bodily function). The EEOC advised that an impairment includes physiological disorders or conditions that affect one or more body systems, like COVID-19. Therefore, EEOC has said that COVID-19 is a “physical or mental impairment” under the ADA.
 
COVID-19’s effect on major bodily functions, including, the immune system, respiratory system, breathing, or concentrating, meets the “limitation” standard for an actual disability. Notably, COVID-19 need not be long-term or severely restrict an employee in order to be considered by EEOC to be “substantially limiting”. If an employee’s symptoms related to COVID-19 occur intermittently, COVID-19 is still an actual disability if the symptoms substantially limit a major life activity when active.
 
(2) Employee/Applicant Used To Be Disabled. The ADA definition also includes someone who is not disabled at present, but who has a “record of” a disability (i.e., the employee or job applicant has a “history of, or has been misclassified as having” an impairment that substantially limits one or more major life activities). The EEOC clarified that this category may include an employee who has a record of having COVID-19.
 
(3) Employer Thinks The Employee/Applicant Is Disabled. ADA's definition of "disability" extends even further to protect employees and job applicants who were never actually disabled, but are nonetheless treated as though they have a disability. The ADA says that the person is deemed “disabled” where the person is “regarded as” having a disability (often mistakenly so) and is subjected to an adverse action (e.g., being fired, not hired, or harassed).
 
(4) Association With A Disabled Person. In this instance, the employee/job applicant has a relationship with someone who either has or had COVID-19. This protection is often referred to as “associational disability” and makes clear that the ADA’s legal protections extend beyond employees who suffer from disabilities. Under this fourth protection, it is unlawful for an employer to exclude or otherwise deny equal jobs or benefits to a qualified employee or applicant because that employee is associated with or has a close personal relationship with an individual with a known disability. Given that COVID-19 can now be considered an ADA disability, employers should be cautious when taking action against an employee who has excessive absences or tardiness as a result of caring for an individual with COVID-19 or COVID-19 symptoms. It is crucial for employers to enforce policies indiscriminately, including all absence policies. Notably, EEOC confirmed in a June 11, 2020, update to its Technical Assistance that this fourth ADA protection is limited to disparate treatment or harassment and does not require an employer to provide a reasonable accommodation to an employee because of their association or relationship with an individual with a disability.
 
The definition of disability is construed broadly. The EEOC advises that individualized assessments should always be used to determine if an employee has a disability arising from COVID-19 .
 
The California Department of Fair Employment and Housing (DFEH) issued guidance in March 2021 that explained that considering COVID-19 as a disability requires a fact-based determination. The DFEH advises that employers should provide reasonable accommodations for employees with disabilities considered to be related to COVID-19 on a case-by-case basis. The DFEH nonetheless warns that employers should not impose an across-the-board accommodation on employees with COVID-19-related disabilities because reasonable accommodations should be designed based on each employee’s particular circumstance. Here is what DFEH said:
 
“Whether illness related to COVID-19 rises to the level of a disability
(as opposed to a typical seasonal illness such as the flu) is a fact-based
determination. Employers should consider telework and leave as
reasonable accommodations for employees with a disability related
to COVID-19 unless doing so imposes an undue hardship . . . Because
an employer and employee are required to work together to try to
identify reasonable accommodation for the employee’s particular
circumstances, employers may not impose an across-the-board


Implications for Employers
 
The key takeaway from the EEOC’s updated guidance is that a job applicant or employee with COVID-19 (or who meets one of the other three definitions of “disability) may be entitled to job protections under the ADA. Further, even if an individual’s initial case of COVID-19 itself is too mild to be deemed an actual disability, COVID-19 may cause so-called "long haul" impairments that are themselves disabilities under the ADA. In some cases, an individual’s COVID-19 may also worsen an individual’s other pre-existing physical or mental conditions to the point where the employee now has an ADA disability.
 
However, there is some relief. First, there are exceptions. COVID-19 will not always be disability for the purposes of the ADA. An employee with mild symptoms similar to the common cold or flu or who is asymptomatic is not likely to have an actual disability (though that person nevertheless may be ADA protected under the 2nd , 3rd and 4th definitions above). Example: an employee/applicant can still claim ADA discrimination under the "regarded as" definition (No. 2 above) if denied the job or benefit because the employer mistakenly assumed they were incapable of doing the job on account of their perception of the employees disability status.
 
Second, an employer taking an adverse action because an employee has COVID-19 or an impairment from COVID-19 does not automatically mean that the employer engaged in unlawful discrimination under the ADA. The employer may assert a defense like the “direct threat” defense to any action taken based on the impairment. The direct threat defense permits an employer to require an employee with COVID-19 or its symptoms to refrain from physically entering the workplace during the recommended period of isolation, due to the significant risk of substantial harm to the health of others. Employers should nonetheless refrain from relying on myths, fears, or stereotypes about COVID-19 to disallow the employee’s return to work once the employee is no longer infectious and, therefore, able to return without posing a direct threat to others.
 
Furthermore, a quirk in the ADA allows that an employee is not entitled to an accommodation, such as, a schedule change, telework, or physical modification to the workplace, unless their disability requires it and they are qualified for the job held or desired. There is no “accommodation:” requirement for persons deemed
disabled under the 3rd and 4th definitions above.
 
The EEOC’s guidance does not alter an employer’s right to ask an employee to provide reasonable documentation about any COVID-19-related disability and/or need for reasonable accommodation when the disability or need for accommodation is not obvious or already known. Importantly, it remains true that an employer need not provide an accommodation that poses an undue hardship.
 
The EEOC constantly updates and expands its guidance as new issues emerge regarding COVID-19, and we anticipate that the guidance mentioned herein may develop. For the meantime, employers should carefully navigate the waters when notified that an employee has COVID-19 particularly if that employee requests work modifications and accommodation, or is returning to the workplace once medically able. There is no bright line test to determine when COVID-19 constitutes a disability, so employers should use a case-by-case approach in assessing their legal obligations.
 
We will continue to monitor major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at www.brgslaw.com.
 
 
 
Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Teri A. Gibbs
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