By: David Keating
Throughout the pandemic, the Equal Employment Opportunity Commission (“EEOC”) has continuously updated its COVID-19 Guidance to provide employers with assistance on issues arising under the antidiscrimination laws that it enforces. Yesterday, the EEOC added a new section to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973.
EEOC’s new questions and answers focus broadly on COVID-19 and the definition of disability under Title I of the ADA and Section 501 of the Rehabilitation Act which both address employment discrimination. The updates also provide examples illustrating how an individual diagnosed with COVID-19 or a post-COVID condition could be considered to have a disability under the laws the EEOC enforces.
Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible reasonable accommodations.
As the EEOC notes, the 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. Employers, however, 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.
Based on this new guidance, employers need to consider each situation on a case-by-case basis and avoid assuming that simply because the employee’s medical condition and/or need for an accommodation is caused by the COVID-19 virus that it falls outside the scope of the ADA or the Rehabilitation Act. Please do not hesitate to contact us if you need specific guidance on a particular situation.
Lindner & Marsack, S.C. represents employers in all areas of labor and employment law. If you have any questions about the recent EEOC technical assistance or any other labor or employment issue involving your business, please contact us at any time.