Labor, Employment, Benefits & Immigration

Is COVID-19 a disability under the ADA?

To qualify as disabled under the Americans with Disabilities act, an individual must be:

1. A person who has a physical or mental impairment that substantially limits one or more major life activities;
2. A person who has a record of such an impairment; or
3. A person who is regarded as having such an impairment.¹

According to recent guidance released by the EEOC in a March 27 webinar, it is unknown whether COVID-19 would itself qualify as a disability under the Americans with Disabilities Act.

Accommodating Disabilities Exacerbated by COVID-19

While COVID-19 itself is not a disability, an employee could request an accommodation based on an existing disability that may put the employee at greater risk of severe illness if he contracts COVID-19. According to the EEOC guidance, in this situation, the employer must engage in the interactive process with the employee to determine if there is a reasonable accommodation that would allow the employee to perform his job.

Under the ADA, the employer can only ask the questions necessary to determine the existence of a disability and a reasonable accommodation that would enable the employee to perform his job.²

Because the ADA would not require an accommodation where an employee has no disability, the employer may verify that the employee has a disability for which that the accommodation is needed because the disability may put an individual at higher risk for contracting COVID-19, and the type of accommodation that would help the employee perform the essential functions of the job.

As usual, the employer may assess whether a specific form of accommodation would cause an undue hardship. ³ Generally, this determination includes assessing whether the action requires significant difficulty or expense when considered in light of a number of factors, such as the cost of the accommodation in relation to the resources of the employer, or whether the accommodation would fundamentally alter the nature or operation of the business. ⁴ However, employers should be extremely cautious and seek legal advice when denying a request based on undue hardship.

Medical Documentation About a Disability During the Pandemic

The EEOC cautions employers that, when seeking medical documentation from a health care provider, many doctors may have difficulty responding quickly. The employee may provide and the employer should accept other ways of verifying disability, including providing a health insurance record or prescription that may document the existence of a disability. During the time when the employer is awaiting medical documentation, the employer may want to provide the accommodation on a temporary basis.

Accommodating Disabilities While Teleworking

For employers whose employees are already teleworking, the EEOC guidance acknowledges that undue hardship considerations might be different when evaluating a request for accommodation while teleworking rather than when working in the workplace. While employers should always make every attempt to accommodate a disability, it is understandable that a reasonable accommodation that would generally be feasible and not pose an undue hardship in the workplace might pose one when an employee makes a specific request for an accommodation while teleworking. The employer may not be able to provide certain items because they are in limited availability or it is unfeasible to provide a certain accommodation within an employee’s home. The EEOC encourages employers to work with their employees and be “creative and flexible” during this time.

When the Pandemic Is Over, Can Employees Who Are Teleworking as an Accommodation Continue Teleworking?

The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability. To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, a request after the COVID-19 crisis has ended to continue teleworking as a reasonable accommodation need not to be outright granted if it requires continuing to excuse the employee from performing an essential function. Rather, the employer should again engage in the interactive process with the employee.

¹  42 U.S.C.A. § 12102
²  https://www.eeoc.gov/facts/ada17.html.
³  42 U.S.C.A. § 12111
⁴  42 U.S.C.A. § 12111

This alert was written by Victoria M. Klein, a lawyer in the Labor, Employment, Benefits & Immigration practice group at Miles & Stockbridge.

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