EEOC cautions some cases of COVID-19 may cause a disability protected by law

While most cases of COVID-19 resolve without complication, the EEOC cautions in a new Section “N” added to its on-going COVID-19 guidance, that some cases may be more severe and cause a “disability” that is protected by the ADA (Americans with Disabilities Act).

The EEOC advises that anyone who experiences only no symptoms or mild symptoms, including symptoms comparable to a cold or flu, will not be considered “disabled.” Rather that person will have suffered a “transitory and minor” illness that is not a “disability.”

However, a person may experience a protected “disability” if they suffer “ongoing but intermittent” symptoms that “substantially limit” major life activities like “neurological and brain function, concentrating, and/or thinking,” or if they receive supplemental oxygen for breathing difficulties, or if they suffer “heart palpitations, chest pain, shortness of breath, and related effects to to the virus that last, or are expected to last, for several months and that “substantially limit” major life activities such as “cardiovascular function and circulatory function.” Likewise “intestinal pain, vomiting, and nausea” that lasts “for many months, even if intermittently” may constitute a “disability” if it substantially limits major life activities. (See. Section N.4). The EEOC explains its guidance is intended to confirm that at least some cases of so-called “long COVID” (more commonly called long-haul COVID) can constitute a “disability.”  Likewise even if the person does not experience long-haul COVID, they may nonetheless suffer a protected “disability” if the COVID-19 triggers a different condition (such as diabetes) that is itself a protected disability.

The EEOC cautions that employees may also be protected if “regarded as” so disabled even if they do not have an actual disability of this type, for example, if their employer fires them because it believes their symptoms will continue along such lines. See Section N. 7.  And the EEOC cautions they may also be protected if the company has a “record of” them having such a condition even if they do not actually have such a condition and are not “regard as” having such a condition.