EEOC Update: Long-Haul Covid Will Be Considered a Disability Protected Under ADA

Published December 23, 2021

On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated guidelines regarding the treatment of Covid-19 as a disability with protections under the American with Disabilities Act (ADA). According to the updated guidelines, employees who have experienced a “long-haul” case of Covid-19 will qualify for protections under the ADA. Those with milder cases of Covid-19 whose health was impacted less significantly will not be considered “long-haul” and thus will not qualify for reasonable accommodations under the ADA. These new guidelines focus on Covid in the context of employment as it relates to Title I of the ADA and section 501 of the Rehabilitation Act.

What has changed?

According to the EEOC, workers with disabilities stemming from Covid-19 are now protected from employment discrimination and may be eligible for reasonable accommodations. But how is this different from the way Covid-related illnesses were treated by employers under earlier EEOC guidelines?

Previously, employers had largely focused on pre-existing conditions (such as compromised immunity, diabetes, heart conditions) to assess employees' requests for accommodations during the pandemic but did not acknowledge Covid-19 itself or the medical problems left in the wake of a long-haul Covid case. The new guidance then expands potential ADA protections to specifically include Covid-19 itself as a covered disability, including the after-effects of a long-haul case as well as the tendency for pre-existing conditions to be exacerbated by Covid, leaving an individual with long-term health effects that may require accommodation.

Specifically, the new EEOC guidelines are now acknowledging that Individuals with Covid or recovering from Covid can develop brand new illnesses or experience a significant worsening of pre-existing conditions, both of which may lead to long-term health effects that qualify as a disability. A healthy individual with no pre-existing conditions can, for example, develop heart problems, diabetes, or gastrointestinal issues after Covid, all of which may lead to impairments to daily life and work. Or an individual with a pre-existing condition that did not impair daily life prior to contracting Covid can experience a worsening of their condition after recovering from the virus that does cause impairment. When these situations occur, under the new guidelines, the individual then qualifies as having an actual disability and is entitled to reasonable accommodation under the ADA.

What hasn’t changed?

While some things have changed under the new guidance, some things regarding protected disabilities (including Covid) and the ADA have not changed. For instance, the ADA's three-part definition of disability still applies to Covid-19 in the same way it applies to other medical conditions. A quick reminder of the three situations that qualify an individual as having a protected disability according to the ADA:

  • Individual has an actual disability defined as a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, or hearing)
  • Individual has a medical history or record of an actual disability
  • There is a perception that an individual has a disability

Keeping this three-part definition in mind, special note should be made that regarding Covid-19 (and all disabilities) that perception of a disability = disability even if the person's impairment might not rise to the level of an actual disability. This level of disability may still be covered under the ADA. This is especially important regarding long-haul Covid in that medical diagnoses and expertise have not yet caught up with the experiences of people suffering the symptoms. In other words, while doctors may not be able to label all post-Covid maladies, the fatigue experienced is very real and perceptible and thus may be protected under the ADA.

Additionally, reasonable accommodation guidelines have not changed. All employees with disabilities (including Covid) are not automatically entitled to reasonable accommodations under the ADA, but they are entitled to a reasonable accommodation when their disability requires it and when the accommodation is not an undue hardship for the employer.

The processes for determining reasonable accommodations also have not changed, beginning firstly with obtaining information from the employee's medical provider about the employee's need for an accommodation and the expected duration of the accommodation (keeping in mind that doctors and scientists at this moment may not know precisely how long long-Covid effects may last).

And the list of possible accommodations remains unchanged, including but not limited to allowing for schedule changes, remote work, physical modifications to the workplace, and providing special or modified equipment. 

Other EEOC recommendations

  • Fair Treatment: Employees with Covid-19 should not be treated adversely under applicable company policies (such as absenteeism policies).
  • Let the Professionals Handle It: Refer all requests for accommodation associated with Covid-19 to HR so that those trained to handle disability requests appropriately can address them properly.
  • Acknowledge the Long-Haul: Promptly flag long-Covid cases to expedite processing. Given the fact that the specific illnesses associated with long-haul Covid, their effects, and their duration are still largely unknown, simply having long-haul Covid is enough to begin accommodation processes, versus waiting for an individual’s specific symptoms and maladies to manifest and be diagnosed.
 

PDF Remediation Software - Free Online Event!

Join us on Tuesday, April 9th, at 1 PM ET for a free online event to explore how to evaluate and select PDF remediation software for your business. Click here to learn more about this event and to register.

Click here to see our Events Calendar.

Accessibility.com's 2024 events will utilize the Zoom Events platform, offering a virtual expo hall for attendees to meet with prospective vendors. If your company is interested in being part of the expo hall, don't hesitate to get in touch with Amanda@Accessibility.com.

Vendor Directory

Accessibility.com offers the premier impartial listing of digital accessibility vendors.  Search for products and services by category, subcategory, or company name.  Check out our new Vendor Directory here.

Comments