The Law Office of Richard Vaznaugh

Expertise in Workplace Rights for California Workers

The Law Office of Richard Vaznaugh
505 Sansome Street
Suite 850
San Francisco, CA 94111
Phone: (415) 593-0076
Fax: (415) 653-8935

Disabilities and COVID-19

 

Although many people with COVID-19 get better within weeks, some people continue to experience symptoms that can last months after first being infected, or may have new or recurring symptoms at a later time. This can happen to anyone who has had COVID-19, even if the initial illness was mild. People with this condition are sometimes called “long-haulers.”  This condition is known as “long COVID” and it  can be a disability under Title II (state and local government) and Title III (public accommodations) of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 , and Section 1557 of the Patient Protection and Affordable Care Act

1. Can COVID-19 be a disability under the Americans with Disabilities Act, Section 504, and Section 1557?

Yes, a person with Long COVID has a disability if the person’s condition or any of its symptoms is a “physical or mental” impairment that “substantially limits” one or more major life activities. A physical impairment includes any physiological disorder or condition affecting one or more body systems (e.g., the neurological, respiratory, cardiovascular, and circulatory systems). A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness. Long affecting one or more body systems (e.g., lung, heart, or kidney damage).

“Major life activities” include a wide range of activities (e.g., caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, communicating, interacting with others, and working). The term also includes the operation of a major bodily function (e.g., the immune system, cardiovascular, and neurological systems)., circulatory systems.

The term “substantially limits” is construed broadly under these laws. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not need to be severe, permanent, or long-term. Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms.

See Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557 for more information and examples of major life activities and when COVID-19 may substantially limit an individual’s major life activities.

Equal Employment Opportunity Update to the Americans with Disabilities Act and the Rehabilitation Act

On December 14, 2021, the Equal Employment Opportunity Commission (EEOC) announced an update to its COVID-19 technical assistance adding a new section to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.  The EEOC’s new questions and answers focus broadly on COVID-19 and the definition of disability under Title I of the ADA and Section 501 of the Rehabilitation Act, which both address employment discrimination. The updates also provide examples illustrating how an individual diagnosed with COVID-19 or a post-COVID condition could be considered to have a disability under the laws the EEOC nforces. Key information includes:  

  • In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability. 
  • An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks—with no other consequences—will not have an ADA disability that could make someone 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. But, 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. 

On July 26, 2021, the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) issued Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557. The DOJ/HHS Guidance focuses solely on long COVID. This new EEOC technical assistance focuses more broadly on COVID-19 and does so in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment. See the information at the beginning of this section for more information.

 

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2. Is Long COVID always a disability?
No. 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. The CDC and health experts are working to better understand long COVID. See Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557 for more information.

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3. What protections do I have from my employer’s inquiries related to COVID-19 and my disability?
The Americans with Disabilities Act (ADA) restricts when and how much medical information an employer may obtain from any applicant or employee, requires employers to keep confidential any medical information they learn about any applicant or employee, and limits how much information they can obtain during hiring and onboarding. See What You Should Know About COVID and the ADA for more information.

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4. Am I entitled to a job accommodation if I have long COVID-19?
Under the ADA, you are entitled to accommodations if you meet the definition of an individual with a disability and are qualified for the job with the reasonable accommodation. A person with Long COVID has a disability if the person’s condition or any of its symptoms is a “physical or mental” impairment that “substantially limits” one or more major life activities. See the Department of Labor’s Workers With Long Covid-19 May Be Entitled to Accommodations for more information.

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5. Where can I find job opportunities for people with disabilities?
Flexible Work for People with Disabilities and Special Needs | FlexJobs publishes job opportunities for remote work, including opportunities for people with disabilities.

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6. When should I disclose a disability in a job interview?
Deciding when to disclose a disability can be a difficult choice for a person with a disability who is job hunting. If you have a hidden disability such as a learning disability or a psychiatric impairment, when and how to disclose your condition can be a real dilemma. See the Job Accommodation Network article Disability Disclosure and Interviewing Techniques for Persons with Disabilities for more information.

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