Are Your Being Discriminated at Your Massachusetts Workplace For Having Covid-19?

by | Jan 4, 2022 | Discrimination |

The U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance today adding a new section to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

EEOC’s new questions and answers focus broadly on COVID-19 and the definition of disability under Title I of the ADA and Section 501 of the Rehabilitation Act, which both address employment discrimination. The updates also provide examples illustrating how an individual diagnosed with COVID-19 or a post-COVID condition could be considered to have a disability under the laws the EEOC and Massachusetts enforces.   

Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws the EEOC enforces. Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations.

Key information includes:

  • 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.

People whose long COVID qualifies as a disability are entitled to the same protections from discrimination as any other person with a disability under the ADA, Section 504, and Section 1557.  Put simply, they are entitled to full and equal opportunities to participate in and enjoy all aspects of civic and commercial life.

Not every person with COVID-19 will be considered disabled, however, in some circumstances, the virus can meet the ADA’s three-part definition of a disability.

ADA definition

In order for someone to be considered disabled under the ADA, they must fall under one of the following aspects of the official definition:

  • “actual disability”
  • “record of disability,” or
  • “regarded as an individual with a disability.”

It’s up to employers to evaluate each employee on an individual basis to see if they fall under the ADA’s definition.

In order for COVID-19 to be considered an “actual disability,” the person’s symptoms must involve a “physical or mental impairment” that “substantially limits at least one major life activity.”

While COVID-19 can certainly result in a physical or mental impairment, it doesn’t always substantially limit a major life activity. An employer will have to judge how bad an employee’s symptoms are. If the symptoms are similar to that of a common cold or the flu, the person likely doesn’t meet this threshold.

However, when someone has long-term COVID-19 symptoms — such as lingering breathing problems that make any physical activity difficult — the illness now meets the ADA’s definition of a disability.

The EEOC also reiterated that just because an employee has an ADA-qualifying disability doesn’t mean they automatically get an accommodation — and if the employee does need an accommodation, it must be reasonable and not place an undue hardship on the employer.

An employee with COVID-19 could also be protected under the ADA even if they aren’t technically disabled, the EEOC said in the guidance.

For example, if an employer fires an employee because they have COVID-19 symptoms, that violates the ADA because the employee was “regarded as being disabled” and experienced an adverse employment action.

For example, this may mean that businesses or state or local governments will sometimes need to make changes to the way that they operate to accommodate a person’s long COVID-related limitations.  For people whose long COVID qualifies as a disability, these changes, or “reasonable modifications,” may include:

  • Providing additional time on a test for a student who has difficulty concentrating
  • Modifying procedures so a customer who finds it too tiring to stand in line can announce their presence and sit down without losing their place in line
  • Providing refueling assistance at a gas station for a customer whose joint or muscle pain prevents them from pumping their own gas
  • Modifying a policy to allow a person who experience dizziness when standing to be accompanied by their service animal that is trained to stabilize them

If your Massachusetts employer is denying you a reasonable accommodation at your workplace because you are experiencing long-hauler effects from having covid-19, contact the Law Offices of Renee Lazar at 978-844-4095 to schedule a FREE one hour no obligation to discuss your concerns.

Set Up A Free Initial Consultation