The EEOC has issued new guidance clarifying when the effects of COVID-19 qualify as a disability under laws it enforces protecting employees from employment discrimination and potentially qualifying them for accommodations in the workplace.
The guidance addresses considerations under the Americans with Disabilities Act and the Rehabilitation Act—both of which apply in the federal workforce as well as in general in the private sector workforce—beyond previous guidance addressing an employer’s obligation to make “reasonable” accommodations up to the point where they would put an “undue hardship” on the employer.
According to an EEOC summary, the key points are that (in its words):
* 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.
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