N.1. How does the ADA define disability, and how does the
definition apply to COVID-19? (12/14/21)
The ADA’s three-part definition of disability applies to
COVID-19 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 and the ADA
“Actual” Disability
N.2.
When is COVID-19 an actual disability under the ADA? (12/14/21)
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 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 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 is a physiological condition affecting one or
more body systems. As a result, it is 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 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 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
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 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 substantially limits 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 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.
Episodic Conditions: Even if the symptoms related to COVID-19
come and go, COVID-19 is an actual disability if it substantially limits a
major life activity when active.
N.3.
Is COVID-19 always an actual disability under the ADA? (12/14/21)
No. Determining whether a specific employee’s COVID-19 is an actual disability always requires an individualized assessment, and such assessments cannot be made categorically. See 29 C.F.R. § 1630.2 for further information on the ADA’s requirements relating to individualized assessment.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? (12/14/21)
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. For other examples of when “long COVID” can be a substantially
limiting impairment, see the DOJ/HHS Guidance.
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.
“Record of” Disability
N.5.
Can a person who has or had COVID-19 be an individual with a “record of” a
disability? (12/14/21)
Yes, depending on the facts. A person who has or had COVID-19 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 the person’s employer mistakenly believes the person has COVID-19? (12/14/21)
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 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.
N.7.
What are some examples of an employer regarding a person with COVID-19 as an
individual with a disability? (12/14/21)
The situations in which an employer might “regard” an
applicant or employee with COVID-19 as an individual with a disability are
varied. Some examples include:
An
employer would regard an employee as having a disability if the employer fires
the individual because the employee had symptoms of COVID-19, which, although
minor, lasted or were expected to last more than six months. The employer could
not show that the impairment was both transitory and minor.
An
employer would regard an employee as having a disability if the employer fires
the individual for having COVID-19, and the COVID-19, although lasting or
expected to last less than six months, caused non-minor symptoms. In these
circumstances, the employer could not show that the impairment was both
transitory and minor.
N.8.
If an employer regards a person as having a disability, for example by taking
an adverse action because the person has COVID-19 that is not both transitory
and minor, does that automatically mean the employer has discriminated for
purposes of the ADA? (12/14/21)
No. It is possible that an employer may not have engaged in
unlawful discrimination under the ADA even if the employer took an adverse
action based on an impairment. For example, an individual still needs to be
qualified for the job held or desired. Additionally, in some instances, an employer may have a defense
to an action taken on the basis of the impairment. For example, the ADA’s
“direct threat” defense could permit an employer to require an employee with
COVID-19 or its symptoms to refrain from physically entering the workplace
during the CDC-recommended period of isolation, due to the significant risk of
substantial harm to the health of others. See WYSK Question A.8.
Of course, an employer risks violating the ADA if it relies on myths, fears, or
stereotypes about a condition to disallow the 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.
Other Conditions
Caused or Worsened by COVID-19 and the ADA
N.9.
Can a condition caused or worsened by COVID-19 be a disability under the ADA? (12/14/21)
Yes. In some cases, regardless of whether an individual’s
initial case of COVID-19 itself constitutes an actual disability, an
individual’s COVID-19 may end up causing impairments that are themselves
disabilities under the ADA. For example:
An individual who had COVID-19 develops heart inflammation.
This inflammation itself may be an impairment that substantially limits a major
bodily function, such as the circulatory function, or other major life
activity, such as lifting.
During the course of COVID-19, an individual suffers an acute
ischemic stroke. Due to the stroke, the individual may be substantially limited
in neurological and brain (or cerebrovascular) function.
After an individual’s COVID-19 resolves, the individual
develops diabetes attributed to the COVID-19. This individual should easily be
found to be substantially limited in the major life activity of endocrine
function. See Diabetes
in the Workplace and the ADA for more information.
In some cases, an individual’s COVID-19 may also worsen the
individual’s pre-existing condition that was not previously substantially
limiting, making that impairment now substantially limiting. For example:
An individual initially has a heart condition that is not
substantially limiting. The individual is infected with COVID-19. The COVID-19
worsens the person’s heart condition so that the condition now substantially
limits the person’s circulatory function.
Definition of
Disability and Requests for Reasonable Accommodation
N.10.
Does an individual have to establish coverage under a particular definition of
disability to be eligible for a reasonable accommodation? (12/14/21)
Yes. Individuals must meet either the “actual” or “record of”
definitions of disability to be eligible for a reasonable accommodation.
Individuals who only meet the “regarded as” definition are not entitled to
receive reasonable accommodation.
Of course, coverage
under the “actual” or “record of” definitions does not, alone, entitle a person
to a reasonable accommodation. Individuals are not entitled to an accommodation
unless their disability requires it, and an employer is not obligated to
provide an accommodation that would pose an undue hardship. See WYSK Section D,
and Enforcement Guidance on Reasonable Accommodation and Undue
Hardship under the ADA for more information.
N.11.
When an employee requests a reasonable accommodation related to COVID-19 under
the ADA, may the employer request supporting medical documentation before
granting the request? (12/14/21)
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, even if not required to do so under the ADA? (12/14/21)
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.
Applicability of
Definition of Disability
N.13.
If an employer subjected an applicant or employee to an adverse action, and the
applicant or employee is covered under any one of the three ADA definitions of
disability, does that mean the employer violated the ADA? (12/14/21)
No. Having
a disability, alone, does not mean an individual was subjected to an unlawful
employment action under the ADA.
For example, the fact that an applicant or employee has a
current disability, or a record of disability, does not mean that an employer
violated the ADA by not providing an individual with a reasonable
accommodation. As discussed in Section D., there
are several considerations in making reasonable accommodation determinations,
including the employee’s need for the accommodation due to a disability and
whether there is an accommodation that does not pose an undue hardship to the
employer.
Similarly, the fact that an employer regarded an applicant or
employee as an individual with a disability does not necessarily mean that the
employer engaged in unlawful discrimination. For example, the ADA does not
require an employer to hire anyone who is not qualified for the job. Moreover,
in some instances, an employer may have a defense to an employment action taken
based on an actual impairment, such as where the individual poses a direct threat to
the health or safety of themselves or others in the workplace.
N.14.
Do any ADA protections apply to applicants or employees who do not meet an ADA
definition of disability? (12/14/21)
Yes. The ADA’s requirements about disability-related
inquiries and medical exams, medical
confidentiality, retaliation,
and interference apply to all applicants and employees,
regardless of whether they have an ADA disability. By contrast, an individual
must have a “disability” to challenge employment decisions based on disability,
denial of reasonable accommodation, or disability-based harassment.
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.