EEOC Issues Updated COVID-19 Guidance as to When COVID-19 May Be a Disability

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The EEOC, in its updated guidance, emphasizes that whether COVID-19 is a disability must be analyzed on a case-by-case basis.

In an effort to provide clarification to employers as to when COVID-19 may be a disability and trigger rights under the Americans with Disabilities Act ("ADA"), the Equal Employment Opportunity Commission (EEOC) has updated its COVID-19 Guidance addressing this issue. The EEOC, in its updated guidance, emphasizes that whether COVID-19 is a disability must be analyzed on a case-by-case basis. COVID-19 constitutes a disability if there is (1) an "actual" disability such that the person has a mental or physical impairment that substantially limits a major life activity, or (2) if there is a record/history of such impairment, or (3) the employee is regarded as having such an impairment.

When COVID-19 Constitutes a Disability

In terms of an "actual" disability, the EEOC explained that where an employee is asymptomatic or has "mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks with no other consequences – the employee will not have an actual disability within the meaning of the ADA." The EEOC reiterated that major life activities include both bodily functions and physical activities and noted that the effects of COVID-19 can impact either or both. In addition, the EEOC provided that "substantially limits" is construed broadly and it does not have to prevent, or significantly or severely restrict, the performance of a major life activity. Indeed, the limitations do not need to last a certain length of time or be long-term and even short-term limitations are covered if they are sufficiently severe. Even episodic COVID-related conditions can constitute a disability if the condition substantially limits a major life activity when active. COVID-19 can cause or worsen impairments (such as heart inflammation, stroke, and diabetes) that then constitute disabilities under the ADA.

There may be situations where an individual is not actually disabled, but is perceived by their employer as having a COVID-19 related disability (i.e., regarded as impaired). This constitutes a disability unless the actual or perceived impairment is objectively both transitory (lasting or expected to last six months or less) and minor. The EEOC provides the following examples:

  • An employer fires an employee because they had symptoms of COVID-19, which, although minor, lasted or were expected to last more than six months.
  • An employer fires an employee for having COVID-19, and the COVID-19, although lasting or expected to last less than six months, causes minor symptoms.

Determination of Disability to be Made Without Considering Mitigating Measures

The determination of whether COVID-19 is a disability is assessed without considering the benefit of mitigating measures, although negative side effects of those measures may result in a disability. The EEOC, in its updated guidance, provided several examples of mitigating measures for COVID-19 including, medication or medical devices or treatments such as antiviral drugs, supplemental oxygen, inhaled steroids and other asthma-related medicines, breathing exercises and respiratory therapy, physical or occupational therapy, or other steps to address complications of COVID-19.

Examples of Common COVID-19 Conditions that Constitute a Disability Under the ADA:

The EEOC provides examples of common COVID-19 conditions that constitute a disability under the ADA:

  • An individual experiencing ongoing but intermittent COVID-19 related multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating.
  • An individual who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months.
  • An individual who experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, for several months.
  • An individual with long COVID who experiences related intestinal pain, vomiting, and nausea that lingers for many months, even if intermittently.

In contrast, the EEOC provides some obvious examples of common COVID-19 conditions that are not substantially limiting and would not be an ADA disability, even though the employee may be required to isolate during the period of infectiousness per CDC guidance:

  • An individual who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort that resolves within several weeks, but experiences no further symptoms or effects.
  • An asymptomatic individual.

Reasonable Accommodations

The EEOC notes that those with a COVID-19 disability are not automatically entitled to a reasonable accommodation. Rather, the disability must actually require an accommodation and the accommodation cannot impose an undue hardship on the employer.

Taking Adverse Action Against Employee

The EEOC notes that an employer who takes adverse action against an employee (such as firing or placing the employee on unpaid leave) for having COVID-19 does not necessarily violate the ADA by doing so. Rather, in order to be protected by the ADA, the employee must be qualified to perform the job in question. Moreover, the employee can be barred from coming into the workplace if they pose a direct threat to others during the infectious period.

ADP Compliance Resources

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Updated on December 20, 2021