ADA may protect workers with COVID-19, new EEOC guidance says

By Gary S. Fealk, John T. Below

Workers who contract COVID-19 can be protected from discrimination under the Americans with Disabilities Act (ADA), according to new Equal Employment Opportunity Commission (EEOC) guidance, issued on December 14, 2021.

Depending on each worker’s circumstances, the virus can cause afflictions that meet one of the ADA’s three definitions for a “disability,” which cover (1) actual, physical, or mental impairments that substantially limit a major life activity, (2) an employer’s perception that a worker has a disability, or (3) the worker’s record of impairment. Employers must individually assess each employee to determine if the individual meets one of the appropriate definitions.

Examples of possible impairments under the ADA include:

• Employees diagnosed with COVID-19 who consequently experience multiple-day headaches, dizziness, and brain fog or heart palpitations, chest pain, and shortness of breath that are expected to last several months
• Conditions caused by a previous COVID-19 diagnosis such as (1) heart inflammation limiting circulatory functions or (2) a stroke restricting neurological functions

Notably, not every person with the virus will qualify as disabled. For example, a worker who tests positive and is asymptomatic or has mild symptoms similar to the flu or the common cold that resolve in a matter of weeks would not qualify.