In December, the U.S. Equal Employment Opportunity Commission (EEOC) added a new section to its COVID-19 guidance that lays out the circumstances in which COVID infection may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Employers may now have to provide reasonable accommodations for any employees or applicants experiencing longer-term or more serious effects of COVID infection, or face potential legal action for discrimination.
According to employment law firm Fisher Phillips, there have been 4,268 COVID-related employment lawsuits filed in the United States between January 30, 2020, and January 5, 2022. Many of these relate to employer vaccination mandates, but a growing subset are claims of employment discrimination against employees who have contracted COVID and experience symptoms.
This includes a case in Pennsylvania in which an employee alleges that her employer violated the ADA by firing her the day she informed her supervisor that she had tested positive for COVID. In October, a federal court refused to dismiss the suit, finding that COVID-19 can qualify as a disability.
The cases also involve employers failing to provide adequate accommodations for employees suffering from COVID and related ailments. According to April 2021 testimony before the EEOC by Brian East, a senior attorney for Disability Rights Texas, over 60% of the pandemic-related complaints the organization’s attorneys reviewed were related to employers rejecting requests for remote work accommodation. These were mostly for employees with disabilities, who may be at greater risk with COVID exposure on-site.
New Federal Guidance
In July 2021, the Department of Health and Human Service’s Office for Civil Rights and the Department of Justice’s Civil Rights Division released guidance that “long COVID” can be considered a disability covered by the ADA. Individuals with long COVID have continued symptoms “that can last months after first being infected” or experience “new or recurring symptoms at a later time.” This condition reportedly occurs in up to 10% of COVID cases. To be considered a disability, “an individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity,” according to the memo.
The EEOC’s December guidance echoed this, stressing that COVID infection alone is not necessarily indicative of a disability. To qualify, the employee or applicant must meet one of the following criteria:
- “Actual” disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, learning, or carrying out a major bodily function).
- “Record of” a disability: The person has a history or “record of” an actual disability, such as cancer that is in remission.
- “Regarded as” an individual with a disability: The person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory and minor.
The EEOC guidance points out that the definition of “substantially limits” is broad, and that “COVID-19 need not prevent, or significantly or severely restrict a person from performing a major life activity to be considered substantially limiting under Title I of the ADA.” Additionally, there is no time requirement for these criteria— a person may qualify even if they are only affected for a short amount of time or in an episodic way, with symptoms coming and going. These considerations also apply to conditions that COVID infection either caused or made worse. For example, someone may suffer a stroke brought on by COVID or a pre-existing heart condition that the virus then exacerbated.
Employer Accommodations and Considerations
Accommodations for a disability can mean “schedule changes, physical modifications to the workplace, telework, or special or modified equipment.” An employer may also risk 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,” the EEOC warned.
Especially with the new Omicron variant, the rapid spread of COVID increases the compliance risk for organizations as rising case numbers will likely mean more disability claims and accommodation requests.
“If an employer has not already experienced an increase in accommodation requests, they likely will, and they need more trained personnel to assist with the requests,” said Kevin J. White, partner and co-head of the labor and employment practice at Hunton Andrews Kurth LLP. He added that employers should consider ahead of time how common accommodations might be implemented, especially if most workers perform the same or similar tasks. For example, given how many employees have already been working from home during the pandemic, remote work arrangements may be an easy option to offer.
As with other disabilities under the ADA, determining whether an employee qualifies requires employers to conduct individual assessments. While it is incumbent on the employee to begin the process by requesting accommodations verbally or in writing, the employer can also start the process.
“An employee does not have to use magic words such as ‘ADA’ or ‘accommodation’ in order to trigger the accommodation process,” said Barbara Grandjean, managing partner at Husch Blackwell. “If the employer is on notice of a potential need for accommodation, the employer should initiate the dialog by asking: ‘Is there anything we can do to help?’”
To make a determination, the employer is entitled to request supporting medical documentation. Alternatively, they may ask employees to sign a limited release permitting the employer to reach out directly to the worker’s health care providers. If the employee refuses to provide either documentation or access to their providers to substantiate their claim, the employer can deny the request.
This process can be fraught with potential risks. “Generally, employers should not seek to do a deep dive into learning about an employee’s medical history or disabilities,” said Shaina Kinsberg, senior associate in the labor and employment practice group at Michelman & Robinson, LLP. “Instead, an employer should defer to input from the given employee’s medical provider, including consideration of any recommended accommodations that the employee may need. Seeking disability-related information related to an employee puts the employer at risk for a claim of discrimination for other unrelated conditions.”
Kinsberg recommended that employers focus solely on finding out specifically about the condition that requires accommodation and what that accommodation should be so that the employee can perform their job functions.
Strict confidentiality is also essential. To the extent possible, Grandjean recommended that employers conduct the assessment without involving the employee’s direct supervisor. This can help prevent unnecessary spread of information and potential claims of retaliation if the employee’s work environment or treatment change after their request.
“Front-line supervisors have to be trained that employee comments regarding their COVID-19 condition need to be routed to the managers trained to manage the accommodations process,” White said.
While weighing the need to provide accommodations, employers must also consider whether providing such measures would be an “undue hardship” for the business. According to Grandjean, this “must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.” If the request does pose an undue hardship, employers can propose alternatives. They can also do so even if the accommodations do not pose undue hardship. Of course, employers are not under any obligation to provide accommodations that are an undue hardship or hire or retain individuals for positions that they are not qualified for.
In the event COVID-19 discrimination claims arise, employers can turn to employment liability practice insurance (EPLI). However, Kinsberg cautioned, “those in the market for EPLI (or companies that carry such coverage) should be mindful of their deductibles and policy limits.” Indeed, since the pandemic began, a surge of employer interest in EPLI and new claims—including those related to COVID—have made carriers wary. In response, many insurers are adding restrictions to policies and increasing rates, or even stripping EPLI out of insurance packages they offer to businesses. Employers should consider these factors when making decisions about workplace COVID procedures and accommodating employees with disabilities.