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EEOC Issues FAQs on COVID-19 as a Disability Under the ADA

On Dec. 14, 2021, the Equal Employment Opportunity Commission (EEOC) issued 14 new items to its frequently asked questions and answers (FAQs) about what employers may or may not do to comply with federal fair employment laws during the COVID-19 pandemic.

The new FAQs specifically address the definition of “disability” under the Americans with Disabilities Act (ADA) and other federal laws that prohibit discrimination based on certain protected traits. Under these laws, employers may face liability if they discriminate against individuals based on disability or fail to provide reasonable accommodations to an otherwise qualified individual with a disability. An employer is subject to the ADA if it has 15 or more employees. Smaller employers may be subject to similar rules under applicable state or local laws.

This Compliance Bulletin provides the EEOC’s 14 new FAQs below. Employers that are subject to the ADA and other federal fair employment laws should not only become familiar with these FAQs but also review the EEOC’s full guidance on COVID-19 and federal fair employment laws. The EEOC initially issued that guidance on March 18, 2020, and updated it several times since.

Action Steps

All employers should follow the most current guidelines and suggestions for maintaining workplace safety, as issued by the Centers for Disease Control and Prevention (CDC) and any applicable state or local health agencies. Employers with 15 or more employees should also become familiar with and follow the guidance provided in all of the EEOC’s FAQs about compliance with federal fair employment laws. These and all smaller employers should also ensure that they comply with all applicable state and local anti-discrimination laws as well.


ADA Disability Definition

The ADA broadly defines the term “disability” to protect against discrimination based on “actual” disability, a “record of” disability and “being regarded as” having a disability.

COVID-19 Disability Guidance

The EEOC’s newly added FAQs clarify, among other things, that:

  • Determining whether a specific employee’s COVID-19 is a disability under the ADA always requires an individualized assessment;
  • COVID-19 is an actual disability if it is a “physical or mental” impairment that “substantially limits one or more major life activities”;
  • Employers must provide reasonable accommodations for individuals whose COVID19 is an actual, past or misclassified disability; and
  • Even if COVID-19 itself does not meet the ADA’s definition of a disability, it may cause later impairments that do.

N. COVID-19 and the ADA’s Definition of “Disability”

Employees and employers alike have asked when COVID-19 is a “disability” under Title I of the ADA, which includes reasonable accommodation and nondiscrimination requirements in the employment context. These questions and answers clarify circumstances in which COVID-19 may or may not cause effects sufficient to meet the definition of “actual” or “record of” a disability for various purposes under the ADA, which is enforced by the EEOC. Other topics covered in this section include disabilities arising from conditions caused or worsened by COVID-19 and the ADA’s “regarded as” definition of disability with respect to COVID-19.

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