As the effects of the COVID-19 pandemic persist and employers struggle with both enforcing mandatory vaccination requirements and planning for return to work scenarios, many employees have questions and need guidance on when contracting COVID-19 qualifies as a disability, and what protections and/or accommodations an employer must provide when otherwise requiring employees to return to work. While there are often no “one-size-fits all” answers to these questions and consultation with legal counsel to understand any facts unique to any individual situation is often required, this blog describes the general rules governing these areas.
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Contracting COVID-19 may qualify as a disability
When an employee has been diagnosed with COVID-19 (even when this occurs without disabling symptoms), an employer is generally required to allow that employee the time required to be clear of this virus and allow the quarantining mandated by law. This can also involve not allowing any such employee to return to work until testing negative and posing no risk to other employees.
Does an employee, however, who has recovered from COVID-19 have any protections under federal and state disability law? Federally, this is generally governed by the Americans with Disability Act, and in Minnesota there are additional protections provided by the Minnesota Human Rights Act. Both laws define disability as a protected class status, meaning an employer cannot take any adverse action against an employee (or job applicant) that is motivated by this protected class status. These laws further require employers to provide “reasonable accommodations” to employee or job applicants who are considered disabled, so long as the employee or job applicant can perform the essential functions of the job with this accommodation, and the accommodation does not otherwise impose an “undue hardship.”
On July 26, 2021, the Department of Justice and the Department of Health and Human Services issued “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557.” This guidance essentially states that individuals diagnosed with “Long COVID” – which essentially means that the long-term effects of the virus persist long after the infection has passed – are to be considered “disabled” under the ADA, and must be accommodated by employers. Therefore, if you have been diagnosed with “Long COVID,” you are considered disabled under federal (and likely state) laws, and should consult with legal counsel if your employer, or prospective employer, is taking any actions against you which appear discriminatory.
Recent guidance provided today by the Equal Employment Opportunity Commission (“EEOC”) goes further and states that in some cases an employee’s or applicant’s COVID-19 may cause impairment (or aggravations of pre-existing conditions) which themselves are disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability. The EEOC further clarified that if an applicant or employee has fully recovered from COVID-19 and has no lingering symptoms or consequences, that individual is not considered disabled and would not be eligible for receiving a reasonable accommodation.
Individuals who have recovered from COVID-19 but are unsure of whether lingering symptoms or consequences qualify them for disability law protections should consult with both a medical health provider and lawyer.
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If I Qualify as Disabled because of COVID-19, What Accommodations are Generally Considered Reasonable?
An employee or job applicant who qualifies for disability protections either because of a “Long COVID” diagnosis or other lingering consequences from recovering for this virus, can generally request that they be exempted from any firm “return-to-work” requirements, and should be permitted to work remotely if he or she can establish that the essential functions of the job can be met through remote work. Indeed, if this has occurred in the past, this will generally be the very best evidence that this continued accommodation imposes no undue burden and should be granted. If an employer resists under this scenario, consult with experienced legal counsel.
