Under the Americans with Disabilities Act (ADA), a “disability” is defined as “a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment.” Throughout the pandemic, there has been some confusion about whether COVID-19 satisfies this definition, and on December 14th, the EEOC issued some guidance to shed light on this topic.
According to the new guidance, some cases of COVID-19 may rise to the level of a “disability” under the ADA. To make this determination, an individual assessment must be conducted for each employee to decide if their symptoms are severe enough to “substantial limit a major life activity.” According to the EEOC, “A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA.” On the other hand, more severe cases can give rise to a disability. The EEOC writes, “COVID-19 also may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others. An impairment need only substantially limit one major bodily function or other major life activity to be substantially limiting. However, limitations in more than one major life activity may combine to meet the standard.” The EEOC provides the following examples of COVID symptoms that might qualify as sufficiently severe:
- ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating
- shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months
- heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months
Because the ADA uses a case-by-case approach to determine if a particular case of COVID-19 qualifies as a “disability,” employees should consult with an attorney before taking action. If you have questions about COVID-19, or any other area of employment law, contact Thatcher Law Firm at 301-850-1246. www.ThatcherLaw.com. Follow us on: