Newest EEOC Guidance to Help Avoid Potential COVID-19 Related Pitfalls
On December 14, 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance to hone in on how it will, likely, interpret COVID-19 issues related to future disability discrimination claims. The EEOC presented 14 Q/A items for guidance.
Some key takeaways:
- Determining whether a specific employee’s COVID-19 is an actual disability always requires an individualized assessment, and assessments cannot be made categorically.
- A person infected with COVID-19 who is asymptomatic or with 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.
Several examples of when COVID-19 is likely a disability, such as:
- Someone with ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, attributed to COVID-19 by a doctor.
- Someone who received 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.
- Someone with heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months.
Examples of COVID-19 is likely NOT a disability, such as:
- Someone who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks.
- Someone who is asymptomatic—does not experience any symptoms or effects—and therefore does not have an actual disability under the ADA.
Examples of potential liability when treating persons regarded as being disabled due to COVID-19, such as:
- An employer that fires an employee because the employee had minor COIVD-19 symptoms that lasted or were expected to last more than six months.
- An employer that fires an employee for having COVID-19, which lasted or was expected to last less than six months, and caused non-minor symptoms.
- Other conditions that employees may have can be exacerbated by COVID-19 to become disabilities.
The EEOC also discusses issues related to providing accommodations. Under the ADA, an employer may ask the employee to provide reasonable documentation about the disability and/or need for reasonable accommodation or request that the employee sign a limited release allowing the employer to contact the employee’s health care provider directly. The EEOC adds that if the employee does not cooperate in providing the requested reasonable supporting medical information, the employer can lawfully deny the accommodation request.
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.
Please keep in mind the following qualifications. This guidance is the EEOC’s interpretation of federal laws and NOT a court’s decision. In California, protection of employees with medical conditions is typically greater than that required by federal law, so all California employers should be sure to consult their favorite CDF Labor Law attorney if confronted with any of these issues.