Sixth Circuit Affirms Enforcement of Technically Deficient Investigatory Subpoena on Affiliate Employer Over Objections to Relevance and Burden

Last month, the Sixth Circuit affirmed enforcement of an EEOC investigatory subpoena served on an affiliate company of the Charging Party’s alleged employer.   EEOC v. Ferrellgas, LP, No. 23-1719 (6^th Cir. 3/26/24).  After addressing and rejecting a number of technical objections to service of the subpoena and alleged waiver of objections, the Court observed that the employer had not shown that the subpoena was unduly burdensome by merely describing the amount of time and effort to comply.  Proving undue burden is a comparative exercise and the employer failed to also explain how limited (or not) its resources were in light of the burden imposed.   The subpoena was also not overly broad because the Charging Party’s allegations touched on similar issues and the EEOC is given broad powers to investigate most employment-related issues. 

According to the Court’s opinion, the operating partnership, holding company and affiliate corporation all had similar names.  The Charge named the holding company as the employer, but the EEOC served its Request for Information (RFI) on the affiliate corporation.  HR and outside counsel responded to the RFI, provided some requested documents, objected to the RFI’s scope (but not to the addressee)  and did not identify which of the entities employed either of them.  The investigation continued for almost two years.  The EEOC then mailed a subpoena to outside counsel, who provided some responsive documents and objected to the scope of the subpoena, but did not challenge the addressee or manner of service.  The EEOC then sent another RFI to HR, but the only response was an objection that it should have been sent instead to outside counsel.   The EEOC then mailed a subpoena addressed to the corporate affiliate but sent to outside counsel, which objected not to the corporate addressee, but to the fact that it was overly broad, was unduly burdensome, was not sent by certified mail and was not signed.   The EEOC then sent the identical, but signed, subpoena by certified mail.  Without filing a formal objection with the EEOC, outside counsel reiterated its objection to the scope of the subpoena.  The EEOC then obtained enforcement of the subpoena from federal court against the operating partnership (not the named employer or corporate affiliate named in the subpoena) and this appeal ensued. 

The Court rejected the respondents’ objection to manner of service because it had already directed the EEOC several times to communicate only with outside counsel. “To hold otherwise would reward duplicity and allow potential defendants to easily avoid the Commission’s subpoenas. What is more, it would ‘create a rule that would allow a lawyer with actual notice of a subpoena to take no action, in hope that the [Commission] will not seek enforcement, and to make objections only if enforcement proceedings ensue.’”  In addition, “when ‘[a]ctual notice reached counsel promptly and counsel responded on the merits,’ service not in strict conformity with the  . . .  regulations does not preclude a district court’s enforcement of a  . . . subpoena.”

The Court agreed that the respondent raised a valid objection that the EEOC had served it with a subpoena whose response date pre-dated the service date (making compliance an impossibility) and identified an entity other than the employer identified in the Charge or even the entity named in the federal court enforcement action.  “[A]t a surface level, the Commission issued a subpoena with an invalid response date and now seeks court enforcement of that subpoena against an entity that was not, strictly speaking, the target of the subpoena itself.  These technical oversights are blameworthy, and the Commission should have rectified them well before this juncture.”   Nonetheless, the Court refused to “exalt form over substance” because the respondents had failed to raise any of these objections to the EEOC.   Moreover, one purpose of the EEOC’s investigatory process involves identifying the correct defendant employer.  Finally, the EEOC’s errors did not prevent the respondents from raising substantive objections to the subpoena to the EEOC, federal court or appellate court.

Similarly, while the Court agreed that EEOC regulations only gave the respondent 5 days to object to a subpoena, it refused to enforce that deadline here because service of the subpoena was not technically correct. “It is self-evident, [respondents] argues, that an employer’s obligation to exhaust its administrative remedies under § 161(1) and 29 C.F.R. § 1601.16(b)(1), if it exists at all, is contingent upon proper service of a subpoena that complies with the statute and its implementing regulations. This argument carries considerable logical force, and we find support for it in our caselaw.”

The Court rejected the employer’s argument that the subpoena was overly broad in seeking information about its hiring practices when the Charge was focused only on compensation and termination issues.    Courts do not strictly construe relevance against the EEOC “and have afforded the Commission access to virtually any material that might cast light on the allegations against the employer.”  Moreover, in this case, the Charging Party had also made allegations about discriminatory statements made to her during her job interview and her initial job assignment, making inquiries into those matters relevant.  In addition,

The application and hiring information that the Commission seeks could cast light on whether [respondents] discriminated against other job applicants — in the same region and during the same timeframe as [Charging Party’s] employment — based on sex or race. In turn, that information might illuminate whether [it] discriminated against [her] on those same bases but in other employment contexts — i.e., in her pay and termination.

The Court also rejected the employer’s arguments that the subpoena was unduly burdensome.   

“[W]hether a subpoena is overly burdensome turns on the nature of the materials sought and the difficulty the employer will face in producing them.”  . . .  Given its “fact-intensive” nature, the burdensomeness inquiry is “generally not amenable to broad per se rules.”  . . . . The employer bears the obligation to show that compliance would impose an undue burden.

First, the respondent only provided an unsigned and undated declaration, which is not valid evidence in any legal proceeding.   In any event, the argument was unpersuasive because it only described the amount of effort that would be required to respond and did not also describe the respondent’s available resources.  The respondent

“fails to explain why they represent an undue burden. Assessing whether the burden of compliance is undue is a comparative exercise; what is unduly burdensome to a small business with a handful of employees may not be unduly burdensome to a Fortune 500 company. . . . While [its] figures provide an estimate of the burden it might face, [it] offers up no baseline against which we can compare its estimates to decide whether the burden it faces is undue. Merely pointing out that compliance with the subpoena will divert employee attention from ordinary tasks is insufficient — if that were enough, then nearly every EEOC subpoena would fail. We are not blind to the fact that compliance with the Commission’s subpoena will require significant time and effort, but without some metric of how significant that time and effort is, we cannot find that an employer has met its burden to show that compliance would be unduly burdensome.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

The EEOC's Finale of COVID Guidance

Yesterday, the EEOC released what is likely to be its last technical guidance on COVID-19.  In it, it addresses how employers may address continuing accommodations granted during the pandemic, how to accommodate employees and applicants with long-COVID and avoiding harassment of employees with long-COVID or need to continue wearing face-masks. For instance, following CDC standards constitutes a business necessity when it comes to medical inquiries and medical examinations.  Many of the revisions merely state recommendations or options instead of requirements.  To save you from having to read though the scores of unchanged FAQ, the revisions if the updated guidance are included below: 

A.1. If an employee calls in sick, how much information may an employer request from the employee in order to protect the rest of its workforce and others (e.g., customers) from infection with COVID-19? (Updated 5/15/23)

If an employee calls in sick, an employer may ask whether the employee has COVID-19 or common symptoms of COVID-19 as identified by CDC. If the employee has COVID-19 or symptoms of the disease, the employer may follow any CDC-recommended period of isolation with respect to when an employee may return to the workplace or otherwise work in close proximity to others.  See A.4., which also addresses following a CDC-recommended period of isolation.  Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

A.2. Where can employers obtain current information on symptoms associated with COVID-19? (Updated 5/15/23)

The list of symptoms commonly associated with the disease may change as public health authorities and doctors learn more and as different variants emerge . Employers should rely on CDC for guidance on symptoms currently associated with the disease. These sources may guide employers when choosing questions to ask employees. See also A.8., addressing the ability of an employer to ask employees if they have been diagnosed with or tested for COVID-19.

A.3. When may an ADA-covered employer take the body temperature of employees in an effort to screen for COVID-19? (Updated 5/15/23)

Measuring an employee's body temperature is a medical examination. See A.6. for a discussion of the type of assessment an employer must do to justify requiring a medical examination (or requiring employees to answer disability-related questions) under the ADA’s “business necessity” standard.  Employers may wish to consult CDC guidance or guidance from other public health authorities to determine if an elevated temperature is a possible indication of infection.  If it is, then taking the temperature of employees will meet the ADA standard. 

A.4. Does the ADA allow employers to require employees to stay home if they have COVID-19 or symptoms of COVID-19? (Updated 5/15/23)

Employers should consult current CDC guidance to clarify when and for how long it recommends someone with COVID-19, or symptoms of COVID-19 should stay home.  The ADA does not prevent employers from following CDC advice.  See also A.1., which addresses the information an employer may request when an employee calls in sick.

 . . .

A.8. May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (Updated 5/15/23)

Yes. Employers may ask all employees who will be physically entering the workplace (or otherwise working in close proximity with others, such as clients) if they have COVID-19 or common symptoms associated with COVID-19 as identified by CDC.   Employers also may ask if these employees have been tested for COVID-19 (and if so, ask about the result).   An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace if consistent with CDC-recommended isolation protocols.   See also A.2.

A.9. May a manager require that a particular employee have a temperature reading or undergo COVID-19 viral testing, as opposed to imposing these medical examinations on all employees? (Updated 5/15/23)

Whether an employer wishes  to require a particular employee, or all employees, to have a temperature reading or to undergo COVID-19 viral testing, the ADA requires that the employer meet the “business necessity” standard because these are medical examinations. Therefore, it is important for the employer to consider why it wishes to require a medical examination. The ADA does not prevent employers from following recommendations by CDC regarding whether, when, and for whom testing (or other medical screening) is appropriate, because following CDC recommendations will meet the ADA “business necessity” standard.  For a discussion of screening testing for employees generally, see A.6.  For a discussion of taking temperature as a screening mechanism, see A.3.  Employers should not engage in unlawful disparate treatment based on protected characteristics in deciding who is subject to medical examinations.

A.10. May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (Updated 5/15/23)

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. For example, GINA prohibits employers from asking employees to provide their family members’ medical examination results, including COVID-19 test results. GINA, however, does not prohibit an employer from asking employees whether they have had contact with “anyone” diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking about an employee’s contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.  Employers should not engage in unlawful disparate treatment based on protected characteristics in deciding who is asked about possible exposure to persons with COVID-19.

A.11. What may an employer do under the ADA if an employee refuses to permit the employer to take the employee’s temperature or refuses to answer questions about whether the employee has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19? (Updated 5/15/23)

An employer may ask employees if they have COVID-19, common symptoms of COVID-19 as identified by CDC, or have been tested for COVID-19 (and if so, ask about the result).  See A.1. and A.8.  An employer also may take an employee’s temperature or require a COVID-19 viral test as long as these medical examinations meet the ADA’s “business necessity” standard.  See A.3., A.6., and A.9.  If an employee refuses to cooperate by answering these questions or taking these medical examinations, an employer may take whatever action it deems appropriate, consistent with its applicable policies or procedures (e.g., barring an employee from physical presence in the workplace or otherwise working closely with others).

To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. For example, the employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The employer may reassure the employee that the ADA prohibits disclosure of employee medical information with limited exceptions. Alternatively, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed; this is discussed in Question G.7.

A.12. May an employer request information from an employee who reports feeling ill while on the job with symptoms associated with COVID-19, in order to protect the rest of its workforce and others (e.g., customers) with COVID-19? (Updated 5/15/23)

Yes.  If an employee who works on-site (or otherwise works in close proximity to others),  reports feeling ill while on the job, an employer may ask whether the employee has COVID-19 or  common symptoms of COVID-19 as identified by CDC.  If the employee has COVID-19 or symptoms of the disease, the employer may follow any CDC-recommended period of isolation with respect to when an employee may return to the workplace or otherwise work in close proximity to others. See A.4., which also addresses following a CDC-recommended period of isolation. Employers must maintain all information about an employee’s illness as a confidential medical record in compliance with the ADA.

 . . . .

A.14. When an employee returns from travel during the COVID-19 pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled? (Updated 5/15/23)

No. Questions about where a person traveled would not be disability-related inquiries. Employers may wish to consult current CDC guidance regarding domestic or international travel for recommendations on what precautions, if any, are advisable after returning from certain destinations.  If an employer wishes to require a medical examination (e.g., requiring a COVID-19 viral test), it must meet the ADA’s “business necessity” standard.  See A.6. and A.9.

 . . .

B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee's temperature or the employee's self-identification as having this disease, or must the employer create a new medical file system solely for this information? (Updated 5/15/23)

The ADA requires that all medical information about a particular employee be stored separately from the employee's personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee's statement that the employee has the disease or suspects so, or the employer's notes or other documentation from questioning an employee about symptoms. Similarly, information about an employee having Long COVID must also be treated as confidential. For information on confidentiality and COVID-19 vaccinations, see K.4.

 . . .

C.1. If an employer is hiring, may it screen applicants for symptoms of COVID-19? (Updated 5/15/23)

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.  This ADA rule applies whether or not the applicant has a disability.  

In addition, if an employer screens everyone for COVID-19 (i.e., screens all applicants, employees, contractors, and visitors because anyone potentially might have COVID-19) before permitting entry to the worksite, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19.  It is also permissible to screen a subset of applicants pre-offer if they fall into a specific category of individuals (including employees and others) that are subject to COVID-19 screening.  For example, if everyone entering a particular building on campus must undergo COVID-19 screening, an employer also may subject an applicant entering this building to the same screening, even though such screening is not routinely done when entering other buildings.  But note, an employer should not use this COVID-19 screening as an opportunity, pre-offer, to also ask applicants disability-related questions and/or to conduct medical examinations that may only be done post-offer. For information on the ADA rules governing such inquiries and examination, see Section A.

 . . .

D.7. If there is some urgency to providing an accommodation, may an employer provide a temporary accommodation? (Updated 5/15/23)

Yes. Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the "interactive process" (discussed in D.5 and D.6., above) and grant the request. In addition, changes in government restrictions may affect the need for accommodations. Changes in how an employer conducts the interactive process may be necessary to suit changing circumstances based on current public health directives.

Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the temporary accommodation (for example, a specific date such as “May 30”). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a disability that puts the employee at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

If an employee requests an extension of a temporary accommodation, the employer must consider it. The employer may take into account current circumstances, including the employee’s current disability-related needs and any applicable  government restrictions or public health directives).

D.8. May an employer invite employees to ask for reasonable accommodations they may need in the future in advance of a return to the workplace? (Updated 5/15/23)

Yes. Employers may inform the entire workforce that employees with disabilities may request accommodations in advance that they believe they may need when returning to the workplace either part-time or full-time. This is discussed in greater detail in Question G.6. If advance requests are received, employers may begin the "interactive process"—the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.

 . . .

D.10. May an employer consider circumstances related to the COVID-19 pandemic when determining if a requested accommodation poses "significant difficulty" (and therefore would be an undue hardship)? (Updated 5/15/23)

An employer may consider whether current circumstances related to the COVID-19 pandemic create "significant difficulty" in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship due to circumstances related to the pandemic, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

D.11. May an employer consider circumstances related to the COVID-19 pandemic when  determining if a requested accommodation poses "significant expense" (and therefore would be an undue hardship)? (Updated 5/15/23)

Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer's overall budget and resources (always considering the budget/resources of the entire entity and not just its components). Current pandemic conditions make it less likely that they would be the foundation for finding  “significant expense,” although an employer may consider any pandemic-related circumstances that could be relevant at the time the employer is making an undue hardship assessment.  But, consideration of any relevant pandemic-related reasons does not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account any constraints created by this pandemic. Even under pandemic-related circumstances, there may be many no-cost or very low-cost accommodations that effectively meet the employee’s disability-related needs.

 . . .

D.19.  What are examples of reasonable accommodations that may assist employees with Long COVID? (5/15/23)

The possible types of reasonable accommodations to address various symptoms of Long COVID vary, depending on a number of factors, including the nature of the symptoms, the job duties, and the design of the workplace.  Some common reasonable accommodations include: a quiet workspace, use of noise cancelling or white noise devices, and uninterrupted worktime to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath.  The Job Accommodation Network has information on a variety of possible reasonable accommodations to address specific symptoms of Long COVID. 

D.20.  As a result of the end of the COVID-19 Public Health Emergency on May 11, 2023, may employers automatically terminate reasonable accommodations that were provided due to pandemic-related circumstances? (5/15/23)

No.  This emergency declaration dealt with issues involving health care coverage and access to treatment.  It did not address the ADA and Rehabilitation Act requirements regarding provision of reasonable accommodation.  Therefore, the end of this Public Health Emergency declaration does not automatically provide grounds to terminate reasonable accommodations that continue to be needed to address on-going pandemic-related circumstances (e.g., continued high risk to individuals with certain disabilities if they contract COVID-19).  However, an employer may evaluate accommodations granted during the public health emergency and, in consultation with the employee, assess whether there continues to be a need for reasonable accommodation based on individualized circumstances.  Consistent with the ADA’s “business necessity” standard, this evaluation may include a request for documentation that addresses why there may be an ongoing need for accommodation and whether alternative accommodations might meet those needs.    

 . . .

E.2. Are there steps an employer should take to address possible harassment and discrimination against employees in connection with the pandemic? (Updated 5/15/23)

Yes. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex (including sexual orientation, gender identity, and pregnancy), religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may want to provide illustrations of pandemic-related harassment for supervisors, managers, and all other employees to help them understand what actions may violate the EEO laws. For example, one illustration might show a supervisor or coworker violating the ADA/Rehabilitation Act by harassing an employee with a disability-related need to wear a mask or take other COVID-19 precautions. Another illustration might show a supervisor or coworker violating Title VII by harassing an employee who is receiving a religious accommodation to forgo mandatory vaccination. (See E.3. for an additional example of pandemic-related harassment.) Finally, an employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

 . . .

G.1. As government restrictions are imposed, lifted, or modified during the course of the pandemic, how will employers know what steps they can take consistent with the ADA to screen employees for the virus that causes COVID-19 when entering the workplace?  (Updated 5/15/23)

The ADA permits employers to make disability-related inquiries and conduct medical exams to screen employees for COVID-19 when entering the workplace if such screening is “job-related and consistent with business necessity.”  For more information on disability-related inquiries and medical examinations, see Section A.  For information on reasonable accommodation requests related to screening protocols, see G.7.

Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

 . . .

K.2. What are some examples of reasonable accommodations or modifications that employers may have to provide to employees who do not get vaccinated due to disability; religious beliefs, practices, or observance; or pregnancy?  (Updated 5/15/23)

An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.  For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19 (provided testing is consistent with the ADA “business necessity” standard for medical examinations; see A.6.), be given the opportunity to telework, or finally, accept a reassignment. 

Employees who choose not to be vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees.  These modifications may be the same as the accommodations made for an employee based on disability or religion.

 . . .

K.16. Does the ADA limit the value of the incentive employers may offer to employees for receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)? (Updated 5/15/23)

No.  If the health care provider administering a COVID-19 vaccine is not the employer or its agent the ADA does not limit the incentives (which includes both rewards and penalties) an employer may offer to encourage employees to receive a COVID-19 vaccination, or to provide confirmation of vaccination. This is because the ADA’s rules about when disability-related inquiries may be asked and medical examinations required only apply when it is the employer or its agent asking the questions or requiring the medical exam.  See K.9.  By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive.  See K.17.  Even if an employer requires employees to receive vaccination or provide confirmation of vaccination, as long as it is not required to be administered by the employer or its agent, the ADA does not limit the value of incentives offered, whether rewards or penalties. 

As noted in K 4., the employer is required to keep vaccination information confidential under the ADA.

 . . .

N.1. How does the ADA define disability, and how does the definition apply to COVID-19 and Long COVID? (Updated 5/15/23)

The ADA’s three-part definition of disability applies to COVID-19 and Long COVID in the same way it applies to any other medical condition. A person can be an individual with a “disability” for purposes of the ADA in one of three ways:

“Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function);

“Record of” a Disability: The person has a history or “record of” an actual disability (such as cancer that is in remission); or

“Regarded as” an Individual with a Disability: The person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.

The definition of disability is construed broadly in favor of expansive coverage, to the maximum extent permitted by the law. Nonetheless, not every impairment will constitute a disability under the ADA. The ADA uses a case-by-case approach to determine if an applicant or employee meets any one of the three above definitions of “disability.”

COVID-19, Long COVID, and the ADA

“Actual” Disability

N.2. When is COVID-19 or Long COVID an actual disability under the ADA? (Updated 5/15/23)

Applying the ADA rules stated in N.1. and depending on the specific facts involved in an individual employee’s condition, a person with COVID-19 or Long COVID 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.” An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 or Long COVID substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances.

A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA. However, depending on the specific facts involved in a particular employee’s medical condition, an individual with COVID-19 might have an actual disability, as illustrated below.

Physical or Mental Impairment: Under the ADA, a physical impairment includes any physiological disorder or condition affecting one or more body systems. A mental impairment includes any mental or psychological disorder. COVID-19 and Long COVID are physiological conditions affecting one or more body systems. As a result, they are each a “physical or mental impairment” under the ADA.

Major Life Activities: “Major life activities” include both major bodily functions, such as respiratory, lung, or heart function, and major activities in which someone engages, such as walking or concentrating. COVID-19 or Long COVID may affect major bodily functions, such as functions of the immune system, special sense organs (such as for smell and taste), digestive, neurological, brain, respiratory, circulatory, or cardiovascular functions, or the operation of an individual organ. In some instances, COVID-19 or Long COVID also may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others. An impairment need only substantially limit one major bodily function or other major life activity to be substantially limiting. However, limitations in more than one major life activity may combine to meet the standard.

Substantially Limiting: “Substantially limits” is construed broadly and should not demand extensive analysis. COVID-19 or Long COVID need not prevent, or significantly or severely restrict, a person from performing a major life activity to be considered substantially limiting under Title I of the ADA.

The limitations from COVID-19 or Long COVID do not necessarily have to last any particular length of time to be substantially limiting. They also need not be long-term. For example, in discussing a hypothetical physical impairment resulting in a 20-pound lifting restriction that lasts or is expected to last several months, the EEOC has said that such an impairment is substantially limiting. App. to 29 C.F.R. § 1630.2(j)(1)(ix). By contrast, “[i]mpairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.” Id.

Mitigating Measures: Whether COVID-19 or Long COVID substantially limit a major life activity is determined based on how limited the individual would have been without the benefit of any mitigating measures—i.e., any medical treatment received or other step used to lessen or prevent symptoms or other negative effects of an impairment. At the same time, in determining whether COVID-19 or Long COVID substantially limits a major life activity, any negative side effects of a mitigating measure are taken into account.

Some examples of mitigating measures for COVID-19 include 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 mitigating measures for Long COVID include medication or treatment, respiratory therapy, physical therapy, and mental health therapy.

Episodic Conditions: Even if the symptoms related to COVID-19 or Long COVID come and go, COVID-19 or Long COVID is an actual disability if it substantially limits a major life activity when active.

 . . .

N.4. What are some examples of ways in which an individual with COVID-19 might or might not be substantially limited in a major life activity? How can Long COVID substantially limit a major life activity? (Updated 5/15/23)

As noted above, while COVID-19 may substantially limit a major life activity in some circumstances, someone infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to the common cold or flu that resolve in a matter of weeks—with no other consequences—will not be substantially limited in a major life activity for purposes of the ADA. Based on an individualized assessment in each instance, examples of fact patterns include:

Examples of Individuals with an Impairment that Substantially Limits a Major Life Activity:

An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.

An individual diagnosed with COVID-19 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, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.

An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.

An individual diagnosed with “Long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA.

Examples of Individuals with an Impairment that Does Not Substantially Limit a Major Life Activity:

An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.

An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.

As noted above, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when active, based on an individualized assessment.

For information on possible services and supports for individuals with Long COVID, see the report issued by the U.S. Dept. of Health and Human Services.

“Record of” Disability

N.5. Can a person who has or had COVID-19 or Long COVID be an individual with a “record of” a disability? (Updated 5/15/23)

Yes, depending on the facts. A person who has or had COVID-19 or Long COVID can be an individual with a “record of” a disability if the person has “a history of, or has been misclassified as having,” 29 C.F.R. § 1630.2(k)(2)   an impairment that substantially limits one or more major life activities, based on an individualized assessment.

“Regarded As” Disability

N.6. Can a person be “regarded as” an individual with a disability if the person has COVID-19 or Long COVID, or the person’s employer mistakenly believes the person has COVID-19 or Long COVID? (Updated 5/15/23)

Yes, depending on the facts. A person is “regarded as” an individual with a disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19 or Long COVID, or the employer mistakenly believes the person has such an impairment, unless the actual or perceived impairment is objectively both transitory (lasting or expected to last six months or less) and minor. For this definition of disability, whether the actual or perceived impairment substantially limits or is perceived to substantially limit a major life activity is irrelevant.

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N.11. When an employee requests a reasonable accommodation related to COVID-19 or Long COVID under the ADA, may the employer request supporting medical documentation before granting the request? (Updated 5/15/23)

Yes. As with employment accommodation requests under the ADA for any other potential disability, when the disability or need for accommodation is not obvious or already known, an employer may ask the employee to provide reasonable documentation about disability and/or need for reasonable accommodation. Often, the only information needed will be the individual’s diagnosis and any restrictions or limitations. The employer also may ask about whether alternative accommodations would be effective in meeting the disability-related needs of the individual. See WYSK Questions D.5. and D.6. for more information.

The employer may either ask the employee to obtain the requested information or request that the employee sign a limited release allowing the employer to contact the employee’s health care provider directly. If the employee does not cooperate in providing the requested reasonable supporting medical information, the employer can lawfully deny the accommodation request.

N.12. May an employer voluntarily provide accommodations requested by an applicant or employee due to COVID-19 or Long COVID, even if not required to do so under the ADA? (Updated 5/15/23)

Yes. Employers may choose to provide accommodations beyond what the ADA mandates. Of course, employers must provide a reasonable accommodation under the ADA, absent undue hardship, if the applicant or employee meets the definition of disability, requires an accommodation for the disability, and is qualified for the job with the accommodation. Accommodations might consist of schedule changes, physical modifications to the workplace, telework, or special or modified equipment. See, e.g., WYSK Section D or U.S. Department of Labor Blog, Workers with Long COVID-19: You May Be Entitled to Workplace Accommodations for more information.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.