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EEOC Adds New Section to Its Guidance, Clarifying When COVID-19 May Be A Disability

To assist the public, the EEOC has updated its guidance on employment and COVID-19 approximately 20 times throughout the pandemic. On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued another update to its’ guidance on COVID-19, entitled, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO LawsThis latest update includes a series of new frequently asked questions (FAQs) (N.1 through N.14) which focus on assisting employers and employees with determining when COVID-19 is a “disability” under the Americans with Disabilities Act (ADA), thereby, triggering reasonable accommodation and non-discrimination requirements.

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.

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. But employers 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.

Next Steps for Employers

Employers are encouraged to review the new guidance as it may assist with ADA compliance obligations. Employers should also train those that will be responsible for implementing the company’s policy and procedures on vaccine mandates on how to properly address accommodation requests, including the reasonable accommodation process.

It is also recommended that employers visit the Job Accommodation Network (JAN) website for resources on types of accommodations that may be offered. Legal counsel may need to be consulted to assist with individualized assessments and making determinations about whether an undue hardship exists as undue hardship must be assessed on a case-by-case basis and cannot be based on hypotheticals.

It is further recommended that employers should be mindful of any applicable state laws related to disabilities and accommodations/non-discrimination which may also be applicable. Where federal and state law or guidance differs, employers should adhere to that which provides the greatest benefit for the employee.

HR Works, headquartered in upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.