Page 35 - BusinessWest January 10, 2022

A Development of Note
COVID-19 May Qualify as an ADA-recognized Disability
By Alexander J. Cerbo, Esq.
As COVID-19 continues to grow, mutate, and spread like a California wildfire,
the Equal Employment Opportunity Commission (EEOC) has released guidance which outlines, in detail, just how COVID-19 may qualify as a ‘disability’ under the Americans with Disabilities Act (ADA).
ee’s bodily functions for a prolonged period. However, ‘long COVID,’ or cases that persist for
several weeks or even months after the initial infec- tion, may qualify as an ADA-recognized disability. Symptoms include ongoing fatigue, brain fog, dif- ficulty concentrating, difficulty breathing, or short- ness of breath. In addition, other health conditions
Employees must meet the criteria of an ‘actual’ or ‘record of’ disability to be eligible for a reasonable accommodation. An actual disability is a “physical or mental impairment which substantially limits a major life activity.” Record of a disability is when the person has a history of that disability.
Eligible employees are not automatically granted a reasonable accommodation — their disability must require it, and the accommodation requested must not pose an undue hardship on the employer. Employers may also request supporting medical documentation in determining whether to grant an employee’s accommodation request.
With COVID-19 cases on the rise once again, and the inception of the new, highly contagious Omicron variant, employers should continue to remain alert for future guidance from the federal government in this ever-evolving pandemic. u
Alexander J. Cerbo, Esq. is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority
and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586- 2288; [email protected]
“EEOC guidance is clear that an employer does not automatically violate the ADA in taking adverse action against
an employee if they have COVID-19.”
In its recent report, the EEOC clarifies that employees who are either asymptomatic or have mild COVID symptoms that resolve in a matter of weeks are not considered disabled under the ADA. These cases are not found to substantially limit a major life activity as they do not restrict an employ-
caused by COVID, or pre-existing health con- ditions exacerbated by COVID (such as heart inflammation), are considered a disability if they limit a major life activity.
The EEOC cautions that a determination as to whether an employee’s COVID-19 case con- stitutes a disability should always be made on a case-by-case basis.
While employers should be mindful as to how they handle employees with COVID, the ADA does provide employers with a ‘direct- threat’ defense by which an employer may require an employee with COVID, or its symp- toms, to refrain from physically entering the workplace during the CDC-recommended period of isolation. An employer will risk violat-
ing the ADA if they exclude an employee from the workplace based upon “myths, fears, or stereotypes,” particularly if the individual is no longer infectious.
EEOC guidance is clear that an employer does not automatically violate the ADA in taking adverse action against an employee if they have COVID-19.
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