On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance to affirm that workers who contract COVID-19 can be protected from discrimination under the Americans with Disabilities Act (ADA). Depending on an individual employee’s specific circumstances, COVID-19 may constitute a protected physical or mental disability, may serve as the basis for an employer’s perception that an employee has a disability, and/or may contribute to a record of employee impairment.

The updated EEOC guidance includes a series of questions and answers that help delineate the interplay of COVID-19 and federal disability discrimination law. For example:

  • An employee with COVID-19 who is asymptomatic or who only suffers mild symptoms that resolve in a few weeks is likely not covered by the ADA based on having contracted COVID‑19.
  • An employee diagnosed with “long COVID” or who suffers substantial limitations to the cardiovascular, circulatory, muscular, neurological, respiratory, or other systems caused by COVID-19, may be covered by the ADA depending on the specific circumstances.
  • If an employer “regards” an employee as having a COVID-19-related impairment, a subsequent adverse employment action could trigger ADA liability. For example, an employee who is fired because the employer thought she had minor COVID‑19 symptoms that would last more than six months could qualify for the ADA’s protections.
  • A condition that is caused by COVID-19 may constitute a disability under the ADA even if the individual’s case of COVID-19 itself does not constitute a disability. Similarly, an individual’s COVID-19 may also worsen a pre-existing condition that was not previously substantially limiting, transforming that condition into a disability under the ADA.

Employers should consult with experienced counsel when navigating accommodation requests or other related employment actions with employees and applicants known or suspected to have contracted COVID-19.