May 30 Tip of the Week

“COVID: Take Two”

Employers have been struggling with the impact of COVID in the workplace for more than two years.  The rules of the game have changed over time and it is difficult to keep up with the requirements for workplace precautions, vaccination requirements, and COVID sick leave.  Just as it seems that the pressures and uncertainty of COVID have started to dissipate, a new concept in COVID management has developed and that is COVID as a disability.  Two courts in two different states have permitted health care workers to move forward with discrimination complaints against their employers for what they characterize as terminations due to the fact that they had COVID and COVID-related symptoms and were “regarded as disabled” by their employers. 

The Americans with Disabilities Act has always included protections for employees who are discriminated against because they are “regarded as” having a disability.  This category of protections is a tough one because it provides protections to employees who may not be disabled within the meaning of disability in the ADA, but have been treated in such a way that it is clear that their employer has regarded them as disabled.  In the past, regarded as claims have been filed where an employer makes an assumption about an individual’s capability based on information that they know about the employee – such as an employee who has a heart attack and is cleared to return to work but the employer fires the employee anyway based on concerns about the employee’s medical condition. 

Regarded as disabled claims are receiving a new focus and the current administration has indicated its intention to expand the definition of disability to include COVID related illnesses.  The Department of Justice and the Department of Health and Human Services issued joint guidance in July 2021 that addresses long COVID as a disability (see, Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557, https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-covid-disability/index.html).  The Equal Employment Opportunity Commission has also issued guidance on COVID and it’s impact on an employee’s right to an accommodation (see, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws).  This new guidance makes it clear that COVID is still very much an issue in the workplace, but in a very different way.    

What does this mean for employers?  Employers must treat an employee’s request for leave and other accommodations due to COVID related symptoms and illness the same as they would treat requests related to any other medical condition.  When an employee presents with an issue related to COVID that appears to impact their ability to perform the essential functions of their job, you must engage in the interactive process and explore ways to accommodate the employee’s limitations.  MyHRcounsel has detailed forms and resources related to the ADA and an employer’s obligation to accommodate employee’s disabilities.  You can find these resources in our HR Solution Center.  We are also available to answer any questions that you may have regarding specific employee situations through our “Ask an Attorney” service.