On December 14, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 technical assistance to clarify when COVID-19 might qualify as a disability under the Americans with Disabilities Act and the Rehabilitation Act. Earlier in 2021, the Department of Justice and the Department of Health and Human Services had issued guidance on “Long Covid” as a disability.
This new EEOC guidance focuses more broadly on COVID-19, not only Long COVID, and specifically in the context of employment discrimination. Complete EEOC Guidance can be found at www.eeoc.gov.
The new EEOC updates provide an additional resource for employees and employers when faced with disabilities and accommodation requests related to COVID-19. In essence, workers with disabilities resulting from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations.
The technical assistance includes Q&A guidance that covers the following key points:
• 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.
Bottom Line for Schools
It is likely your HR departments will be confronted with disability claims and accommodation requests based on COVID. The intersection of the COVID pandemic and disability is tricky and unsure.
As has been the case since the inception of the pandemic, this area of law is ever evolving, and we encourage you to contact your legal counsel or an employment attorney at KingSpry for the most up-to-date and detailed guidance.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.