COVID-19 Can Be A Disability, Per New EEOC Guidance

Since the term “Coronavirus” first entered the public lexicon, one of several questions to plague employees, employers, and employment attorneys alike has been: “Is COVID-19 a disability?”  The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued guidance on this very question, providing a both expected and unsatisfying answer: “Maybe.”

In so many words, the EEOC’s guidance confirms that analyzing whether COVID-19 amounts to a disability under the Americans with Disabilities Act (“ADA”) follows the same framework that would apply in the case of any other medical condition.  Quoting the ADA, the EEOC’s guidance explains, “a person with COVID-19 has an actual disability if the person’s medical condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits one or more major life activities.’”  

Determining whether COVID-19 is a disability requires an individualized, case-by-case analysis of the particular individual’s symptoms.  For example, a person infected with the virus causing COVID-19 who is asymptomatic or who suffers from mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will almost certainly not be deemed to suffer from an actual disability within the meaning of the ADA.  Put simply, in most cases COVID-19 will not amount to disability.

However, depending on the symptoms COVID-19 causes a particular person, as well as the duration of those symptoms, COVID-19 may constitute an an “actual disability” under the ADA.  As the EEOC’s guidance illustrates through several examples, COVID-19 may constitute a disability in cases of so-called “long COVID.”  Indeed, an individual who suffers from symptoms that substantially limit major life activities that are likely to last several months, if not longer—e.g., difficulty breathing; brain fog—may suffer from a disability within the meaning of the ADA.

Given the inability to apply a blanket rule as to whether COVID-19 amounts to a disability under the ADA, employees who intend to seek a reasonable accommodation from their employers due to COVID-19 should consult with an attorney as soon as possible to determine whether their cases of COVID-19 constitute disabilities.  Those employees should also be mindful that the New York State Human Rights Law and New York City Human Rights Law impose more lenient definitions of the term “disability” and, as such, may afford protections for COVID-19-related disabilities where the ADA does not.