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When Is Covid-19 A “Disability” Under The ADA: New Guidance From The EEOC

December 15, 2021

Laura L. Rubenstein

On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance website adding a new section to clarify circumstances under which COVID-19 may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act, triggering certain employers to consider making accommodations. Here is a basic summary: • In some cases, an applicant’s or employee’s COVID-19 diagnosis may cause impairments that render them “disabled” under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.

• An applicant or employee whose COVID-19 diagnosis results in mild symptoms that resolve in a few weeks—with no other consequences—is not considered “disabled” nor eligible to receive a reasonable accommodation.

• Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it and the accommodation is not an undue hardship for the employer. However, employers can choose to do more than the ADA requires.

• An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an 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. For up-to-date guidance on how to handle employee requests related to COVID, contact Laura Rubenstein at LRubenstein@rkwlawgroup.com

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