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COVID-19 RESOURCE CENTER FOR NJ EMPLOYEES

EEOC Adds Guidance on When COVID-19 May Be a Disability Under the ADA for New Jersey Employees

Federal and state employment laws in New Jersey protect workers from discrimination on the basis of disability. The Equal Employment Opportunity Commission (EEOC) construes the term “disability” very broadly to include an array of physical and mental conditions. We are still learning about the long-term effects of COVID-19 on some people. The symptoms of “long COVID” can be debilitating. In late 2021, the EEOC updated its guidance regarding COVID-19 to address when the illness may constitute a disability under the Americans with Disabilities Act (ADA). If you are experiencing symptoms associated with a possible disability and are concerned about how you are treated at work, please reach out to a New Jersey employment lawyer to discuss the situation.

The text of the ADA itself contains a rather general definition of “disability.” It covers impairments that “substantially limit[] one or more major life activities.” The statute defines “major life activities” as most daily tasks, such as “sleeping, walking, standing, lifting, bending, speaking, [and] breathing,” to name but a few, along with most “major bodily functions.”

The ADA’s protections apply in three situations:
– People who have a disability, as defined by the statute;
– People who have a “record” of a disability; and
– People who are “regarded as having” a disability.
A worker may experience unlawful discrimination based on a perception that they have a disability, regardless of whether they actually have a disability that impairs a major life activity.

Multiple federal government agencies have concluded that conditions meeting the ADA’s definition of “disability” can result from long COVID, also known as “long-haul COVID” or “post-COVID.” The EEOC’s guidance follows a guidance document jointly published by the Departments of Health and Human Services (HHS) and Justice (DOJ). The Centers for Disease Control and Prevention (CDC) has noted a wide range of symptoms that could interfere with daily life, including:
– Overwhelming fatigue;
– Difficulty breathing;
– Heart palpitations;
– Difficulty concentrating, also known as “brain fog”;
– Dizziness;
– Headaches;
– Gastrointestinal distress; and
– Joint or muscle pain.
Some people have reported these symptoms persisting for months or longer after they recovered from the initial COVID infection.

The EEOC has concluded that COVID-19 is not always a disability under the ADA. It recommends “individualized assessments” to determine whether someone’s symptoms meet the ADA’s criteria. People who develop flu-like symptoms from COVID that resolve within days or weeks with no further impact, according to the EEOC, would not have a disability. People who suffer long-term symptoms like those identified by the CDC, on the other hand, could meet the ADA’s definition of disability. Employers may have to provide them with reasonable accommodations, such as desk duty for someone with respiratory or gastrointestinal difficulties.

An employer may also violate the ADA if they take adverse action against an employee because of a perception that the employee has a disability. Perhaps the employee, or someone in their household, had COVID but has since recovered with no long-term effects. The EEOC states that the employee’s condition in that situation would be “transitory and minor.” The employer could not terminate that person or take other adverse actions because of their past COVID diagnosis.

Employers may, however, take actions that prevent a “direct threat” to others in the workplace. An employer does not violate the ADA, for example, if they impose reasonable restrictions on an employee immediately after a positive COVID test. The employee must be allowed to return once they are medically fit to do so.

The employment attorneys at the Resnick Law Group represent New Jersey and New York employees, former employees, and job applicants in claims for disability discrimination and other violations of state and federal law. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation with a member of our team.

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