On December 12, 2021, the US Equal Employment Opportunity Commission (EEOC) added a new section to their technical assistance page. The updated section clarifies under what circumstances COVID-19 infection may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
In July 2021, the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) published Guidance on Long COVID as a Disability Under the ADA, Section 504, and Section 1557. This guidance is focused primarily on long COVID, and does so in the context of Title II and III of the ADA and section 501 of the Rehabilitation Act which cover employment, and Section 1557 of the Patient Protection and Affordable Care Act.
Key Information in the updated section 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 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.
The EEOC has updated its guidance on employment and COVID-19 approximately 20 times throughout the pandemic. The EEOC’s updated technical assistance page for COVID-19 can be accessed here.
The DOJ and HHS Guidance on Long COVID as a Disability Under the ADA, Section 504 and Section 1557 can be accessed here.
Compliance Perspective
Issue
All staff, including facility leadership and the human resource department, should be aware that COVID symptoms or conditions that developed because of the COVID virus may be considered a disability. It is important to be aware that COVID symptoms, even long COVID symptoms, are not always a qualifying disability. An individualized assessment is necessary to determine whether a person’s COVID symptoms, long COVID condition, or any of the accompanying symptoms substantially limit a major life activity. Disability Discrimination is prohibited in the workplace. When there are concerns about an employee returning to work after an illness or injury, human resource personnel should be contacted immediately. Every effort should be made to have the employee evaluated to determine any limitations or which specific duties the employee can perform. While federal law prohibits discrimination in the workplace, most states have enacted their own additional laws regarding workplace discrimination. It is essential that administration and human resources personnel are aware of their state-specific laws.
Discussion Points
- Review your policies and procedures for prevention of discrimination. Incorporate COVID symptoms and long COVID symptoms and conditions into your policy, and ensure that an individualized assessment is included in your procedure for persons with long COVID. Ensure that your state’s laws for nondiscrimination are included in the policies and procedures.
- Train staff about their rights to be free from discrimination in the workplace. Include trainings on COVID and long COVID. Ensure that appropriate staff understand that employees with affects of long COVID may qualify for disability coverage or reasonable accommodation under the ADA. Teach staff to report any concerns of discrimination to their immediate supervisor, the administrator, human resources, the compliance and ethics officer, or through the facility’s hotline.
- Periodically audit to ensure that employees diagnosed with long COVID are offered disability options or reasonable accommodation if needed. Ensure that no discrimination has occurred.
