For employees who have COVID or are recovering, when is it considered an ADA-covered disability?

• Author: Delogu, Nancy
• Position: The Mailbag

Q We have employees who are recovering from COVID illnesses--some slower than others. How do we decide if the person is considered "disabled" according to the Americans with Disability Act?

--Kenneth, New York

1. COVID-19 can be considered an ADA disability, but it's not automatic. In fact, in December 2021 the EEOC published guidance about making this decision. The guidance makes clear that COVID is not always a disability. It specifically states that "A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks--with no other consequences--will not have an actual disability within the meaning of the ADA."

   Nevertheless, an applicant or employee who has contracted COVID may have impairments and disabilities as a result, even if the COVID infection was itself not severe enough to be a disability. People whose lungs and cardiovascular systems are damaged by the virus may fall into this group. (The Department of Justice does recognize "long COVID" symptoms as a disability.)

   The guidance reminds us that an individualized assessment is necessary to determine if the effects of someone's COVID infection substantially limit a major life activity. This is always a case-by-case determination of the facts.

   The EEOC points out that "COVID-19 may affect major bodily functions, such as functions of the immune system, special sense organs (such as for smell and taste), digestive, neurological, brain, respiratory, circulatory, or cardiovascular functions, or the operation of an individual organ. In some instances, COVID-19 also may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking or interacting with others."

   The EEOC cautions that "an impairment need only substantially limit one major bodily function or other major life activity to be substantially limiting. However...