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EEOC Putting Onus On Employers To Make Virus ADA Calls

By Anne Cullen · Mar 2, 2021, 6:30 PM EST

A year into the coronavirus pandemic, employers still don't have an answer from the U.S. Equal Employment Opportunity Commission on whether a COVID-19 infection triggers their obligations under disability laws. Absent clear guidance, experts say companies should play it safe.

The EEOC, which is in charge of enforcing the Americans with Disabilities Act among other anti-discrimination laws, has issued stacks of guidance on the virus since March 2020. But the agency has left employers guessing about whether a case of COVID-19 — even one with severe, lingering symptoms — qualifies as a disability under the ADA.

In light of that fact, attorneys are advising leaders to forgo analyzing whether a worker's infection counts as a disability and instead focus on the help the employee is asking for and whether it's feasible.

"An employer should just start the interactive process because the definition of disability is so expansive under federal law, and it's even more expansive under some of the state laws," said Jackson Lewis PC principal Sheri L. Giger, who co-leads the firm's disability, leave and health management practice.

The ADA defines a disability as "a physical or mental impairment that substantially limits one or more major life activities of such individual," which regulations clarify can include "walking, talking, seeing, hearing or learning, or operation of a major bodily function."

If a worker has a condition that falls under this category, their employer is required under the ADA to afford them a special arrangement that ensures they have "equal access to all benefits and privileges of employment" that their nondisabled peers enjoy.

And experts say certain COVID-19 infections could qualify as a disability under the federal statute.

Someone infected with the virus can experience debilitating symptoms, and those considered "long-haulers" may face lingering fatigue and respiratory problems for months after surviving the infection, according to the Centers for Disease Control and Prevention.

Many state laws, including in New York and New Jersey, include even broader definitions of disability than federal law does, leaving more room for COVID-19 to qualify.

Still, whether a serious, prolonged infection of COVID-19 would trigger the ADA requirements remains an unanswered question on the federal level.

Early on in the crisis, the EEOC blamed the newness of it all as a reason it couldn't make a determination on whether an infection can be considered a disability.

"This is a very new virus, and while medical experts are learning more about it, there is still much that is unknown," the agency said in a question and answer session in March 2020. "Therefore, it is unclear at this time whether COVID-19 is or could be a disability under the ADA."

An agency spokesperson recently told Law360 there's still no answer.

The U.S. Department of Labor division dedicated to offering guidance on disability employment policies has offered a little more information, as the Job Accommodation Network has said the disease alone "may not be considered a disability under the ADA, due to the illness being transitory and having limited impact on major life activities in ordinary circumstances."

While employers could look to the judiciary for guidance as well, no federal court appears to have yet planted a flag on the issue.

Employment lawyers say that even if the EEOC did issue guidance in this arena, the agency would likely shy away from offering any definitive answer on whether COVID-19 is a disability, even in the case of long-haulers.

Instead, they expect the commission would shed light on how employers could answer this question for themselves on a case-by-case basis.

"I think potentially the EEOC could give guidance about how to undertake the analysis," said disability law expert Jonathan Mook of DiMuroGinsberg PC. "That would be helpful."

"But I don't think the EEOC will provide a definitive answer either way," he added.

--Editing by Philip Shea.

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