Coronavirus Employment Law Attorneys Best Answers: When does having COVID qualify as a disability? Can my boss fire me if he thinks that I have COVID? Can I get a work accommodation to help with my ongoing COVID symptoms?
Employees that contract COVID now may have greater protections in the workforce than ever before following the Equal Employment Opportunity Commission (“EEOC”) issuing guidance to employers and employees. (See Top Employment Law Attorney: Do Not File With The EEOC Without Doing This First; File With The EEOC Or Get A Lawyer? Call The Right Attorney). Specifically, in this guidance, the EEOC addresses how COVID should be evaluated as a disability under the Americans with Disabilities Act (“ADA”), which governs private employers with 15 or more employees.
As part of this guidance, the EEOC identified the circumstances which may cause Covid-19 to be deemed a qualifying disability under the ADA for employment purposes. For the first time, this EEOC guidance indicates that an employee presenting symptoms of Covid-19, which substantially limit a major life activity, may have a qualifying disability. This means that an employee with such symptoms would have the protections under the ADA against discrimination as well as being entitled to a reasonable accommodation. This is a new development as the Department of Labor (“DOL”) in conjunction with the Department of Health and Human Services (“DHHS”) previously issued guidance on July 26, 2021, which only identified “long-haul” COVID or “long COVID,” as a potential disability. However, the DOL and DHHS’s guidance was limited in scope, providing “This guidance does not address examples of reasonable accommodation or nondiscrimination in employment under Title I of the ADA or Section 501 of the Rehabilitation Act.” At the time, employment lawyers could infer that such a standard may apply in the employment setting, but that was all.
Now, the EEOC’s guidance is directly applicable to private employers and applies more overall to all COVID infections, even short term. Specifically, the new EEOC guidance expressly provides that when an employee’s Covid-19 symptoms fall within the ADA’s definition of a “disability”, the employer cannot take an adverse employment action against the employee for having COVID, i.e. it would be a wrongful termination to fire an employee for having COVID. (see What Is An Adverse Employment Action?)
The ADA, which was amended in 2008 by the Americans with Disabilities Act Amendment Act (“ADAAA”), defines a disability under 42 U.S.C § 12102 as being any one of the following:
- a physical or mental impairment that substantially limits one or more major life activities of such individual;
- a record of such an impairment; or
- being regarded as having such an impairment.
Typical examples of a physical or mental impairment that substantially limits one or more major life activities of such individual include walking, talking, seeing, hearing, learning, or any operation of a major bodily function. The “regarded as” category of the ADA occurs when an adverse employment action is taken against an employee because the employer believed that employee has a medical or physical impairment, 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. Unlike employees with actual qualifying impairments, an employee “regarded as” having a disability is not entitled to a reasonable accommodation.
Therefore, under the above criteria, employees with COVID that are asymptomatic as well as those employees with lesser or nominal symptoms (comparable to a common cold or the flu)
that resolve in a matter of several weeks will not satisfy the ADA’s definition of having an actual impairment. However, these employees may still fall under the “regarded as” classification – meaning that they could arguably have a wrongful termination claim under the ADA if fired for contracting the Coronavirus.
Taking this a step further, the new EEOC guidance specifically lists symptoms associated with COVID that may satisfy the “substantially limits a major life activity” requirement, including:
- An employee who tested positive for COVID and experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which that employee’s doctor or medical provider attributes to COVID, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.
- An employee who tested positive for COVID and initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue that last or are expected to last several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.
- An employee who tested positive for COVID and 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 employee is substantially limited in cardiovascular function and circulatory function, among others.
- An employee who suffers from “long COVID” and experiences COVID-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. Other examples of when “long COVID” can be a substantially limiting impairment can be found in the DOJ/HHS Guidance.
When an employee satisfies the requirements to have an actual disability under the ADA, the employer will be required to engage in what the ADA calls the interactive process with that employee to find out if there is a reasonable accommodation that would not cause an undue hardship on the employer’s business. (See What Is The Interactive Process For Disabled Employees?). In the context of COVID, reasonable accommodations may include: remote work, schedule alterations, physical modifications to the workplace, and adding or modifying equipment.
At Spitz, The Employee’s Law Firm, our employment lawyers are standing by to take on your Coronavirus related employment claims, including if you are searching “I need a lawyer because I have been wrongfully fired or terminated;” “I have been discriminated against or harassed based on my disability or diagnosis”; or “I was fired for asking about Family Medical Leave Act (FMLA) during the COVID-19 pandemic.” In these uncertain times, if even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our lawyers in Cleveland, Detroit, Columbus, Toledo and Cincinnati to get help now. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
Disclaimer:
This employment law website is an advertisement. The materials available at the top of this Coronavirus page and at this employee’s attorney website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I get an accommodation after having lingering coronavirus symptoms”, “What should I do if I was fired right after letting my boss know that I tested positive” “My boss demoted me because I was out with COVID” or “I was fired for testing positive”, it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.