As discussed here, on July 26, 2021 the Biden Administration released a package of guidance and resources designed to assist employers facing new accommodation challenges relating to employees with "long COVID”. Today, the Equal Employment Opportunity Commission (EEOC) released additional guidance on how the Americans with Disabilities Act (ADA) defines disability and how that definition applies to COVID-19.
A few key points from the update:
“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.”
Employers should keep in mind that while they may choose to do more than the ADA requires, doing so will raise the company’s standards of accommodation going forward for all employees. In other words, the company will no longer be held to statutory standards, but rather the higher standards set by the company. This is also true for state protections such as California’s Fair Employment and Housing Act (FEHA).
California employers should also be aware that FEHA protections for applicants and employees who are disabled (or perceived to be disabled) are far broader than federal ADA protections. In other words, if the effects of long COVID would limit (as opposed to “substantially limit”) a major life activity such as work, it will likely trigger an employer’s obligation to engage in the interactive process to determine if a reasonable accommodation will allow the employee to perform the essential functions of their job absent any undue hardship to the employer.
Members with questions about their responsibilities under the FEHA or ADA should contact Western Growers.
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