In guidance released on 12/14/21, that is frankly not a surprise to me as an employment lawyer dealing with Americans with Disabilities Act issues, the EEOC has opined that COVID-19 may cause a disability. The guidance is important because courts will look to the EEOC’s opinion on the subject when ruling on this issue (although courts aren’t required to strictly defer to the EEOC.)
To be protected by the ADA, an individual must have a disability that “substantially limits a major life activity” and must be able to perform their job duties with or without accommodations. A person with a disability may also be one who is merely “regarded as” having a disability or who has a record of a disability.
Not everyone who has or had COVID-19 is an “individual with a disability.” For example, someone diagnosed with Covid-19 who experiences multiple-day headaches, dizziness, and brain fog attributed to the virus could be an example of a person protected from discrimination by the ADA. This is a form of “long haul” COVID, which is apparently (unfortunately) fairly common.
But a person who has flu-like symptoms and makes a full recovery is not protected under the ADA unless 1) the employer regards the person as an individual with a disability and 2) acts accordingly; for instance, fails to hire the person because of a perception that they are disabled by COVID and unable to handle the job. It is the effects of COVID-19, not merely having it, that dictates the classification as a person with a disability.
I’m urging clients to engage fully in an interactive process with employees who raise these issues. I have had to represent a client with appeals all the way to the Supreme Court in an ADA case.
Have you known people who had COVID-19 and sought work accommodations?
ABOUT KATHERINE WITHERSPOON FRY
For over 25 years, Katherine has provided her clients with robust representation in matters of employment and related business law. Katherine represents and counsels employers and executives in all facets of the employment relationship, including hiring, termination, discrimination, non-competition, Fair Labor Standards Act matters, issues regarding Family and Medical Leave and other leaves, whistleblowers’ complaints, and regulatory matters. As a litigator, she is well aware of the nuances of law necessary to draft effective restrictive covenants, severance agreements, and employment contracts. Along with her over 250 colleagues, she represents companies and non-profit organizations of all sizes. She has defended companies under investigation by both U.S. and state Departments of Labor and handled multiple matters before the EEOC.
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