Employment Tip Of The Month – November 2022 – Discrimination, Disability & Sexual Harassment

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Q. Some people who have been infected with the virus that causes COVID-19 can experience long-term effects known as post-COVID conditions (PCC) or long COVID. Under the Americans with Disabilities Act (ADA) must an employer provide reasonable accommodations to an employee experiencing long COVID?

A: Yes, an employer must provide reasonable accommodations to an employee if long COVID substantially limits one or more of the employee’s major life activities.

Under the Americans with Disabilities Act (ADA), as amended in 2008 (ADA Amendments Act or ADAAA), disability is defined in three ways: (1) a “physical or mental impairment that
substantially limits one or more major life activities,” (2) being “regarded as” having such impairment, even if the employee does not actually have the impairment, and (3) having a record of such impairment. 42 USC § 12102. Major life activities include tasks such as concentrating, thinking, breathing and working, as well as major bodily functions, including respiratory, digestive and immune system functions.§ 12102(2).

Accordingly, under the ADA, an employee whose COVID-19 infection results in mild symptoms that resolve within a few weeks likely will not be determined to be a person with a disability, and is therefore ineligible for a reasonable accommodation on the basis of their illness , because the infection does not substantially limit major life activities.

However, it is important to understand that in amending the ADA in 2008, Congress emphasized that the definition of disability should be constructed in favor of broad coverage and to the “maximum extent permitted” by the terms of the ADA – overall, the intent was to make it easier for individuals to establish that they have a disability within the meaning of the ADA.

Therefore, an employee whose COVID-19 infection results in moderate or severe symptoms such as, among other things, shortness of breath or difficulty breathing, joint and muscle pain, intestinal pain, vomiting and nausea, heart damage and palpitations that linger for months after infection or indefinitely, is substantially limited in major life activities and may be entitled to a reasonable accommodation under the ADA if it is not an
undue hardship for the employer. That being said, employers should always engage in an “interactive process” with the employee to determine whether there is a reasonable accommodation that will enable the employee to perform essential job functions. This process involves conducting an individualized assessment to determine whether an employee’s post-COVID-19 conditions or symptoms substantially limit a major life activity. It is appropriate at this point to request notes and other documentation from the employee’s physician.

Please be aware that state and local laws can be more protective than the ADA and may have a broader definition of disability. It is important to refer to these laws in addition to the ADA when evaluating whether an employee has a disability that makes them eligible for a reasonable accommodation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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