out whether an employee’s COVID-19 infection qualifies them for disability protections has been left up to you. Making the wrong decision could open you up to expensive litigation and fines for your practice, another layer of stress during a time when you don’t need any more. Covid-related disability.
Thankfully, new guidance from the Equal Employment Opportunity Commission (EEOC) can help you better determine which COVID-related disability cases you should approve and which ones you can deny.
The EEOC’s guidance states that a “mild” case of COVID that resolves itself within a few weeks is not a “disability” under the Americans with Disabilities Act (ADA). However, respiratory issues and other impairments caused by COVID can be covered by the ADA if they significantly limit a worker’s bodily functions or life activities, including walking and lifting. Covid-related disability.
Also, if your employee is dealing with “long COVID” (the aftereffects of a COVID infection that lasts four weeks or longer) they could be covered by the law if their diagnosis leads to ongoing complications. Additionally, other conditions, such as a stroke caused by COVID, can also be considered disabilities under the ADA.
Simply put, it isn’t always easy to clearly determine whether an employee qualifies for disability protections based on the ADA guidelines. But one thing is for sure, you don’t want to miss a detail and make the wrong decision. Fully understanding the nuances in making this determination will guide you in the right direction when evaluating a case.
Evaluating Disability Claims Covid-related disability
Even if one of your staff is required to isolate at home and can’t work, they do not automatically qualify for disability protections (and disability pay) simply because they were infected with COVID. They only qualify if they are severely limited due to COVID complications.
It’s up to you to make the determination, with some input. Evaluating an employee’s disability claim doesn’t come with a set of boxes to tick before you grant their request. An individual assessment if each claim must be conducted. Here are some examples of cases where an employee’s complications would be considered substantially limiting and rise to the level of disability protections:
For a large portion of your workers who experience COVID infections, they will not experience any long-term debilitating effects. Some examples where a COVID infection won’t qualify an employee to receive disability protections are:
When evaluating each case, it’s essential to document your employee’s ability to do their job prior to their infection as well as afterward. The key to determining whether they qualify for disability protections comes in looking at the individual facts of disability claims as defined by the EEOC.
Disability Claim Factors Covid-related disability
The EEOC gives you guidance to help determine when an employee’s COVID complications qualify them for disability. These facts should be used when looking at an employee’s request for disability protections, helping you make the right determination for each situation:
- Physical or Mental Impairment: COVID-19 is considered a physiological condition that affects one or more body systems, meeting the ADA conditions of disability.
- Major Life Activities: If an individual’s “major life activities,” including both major bodily functions and/or major activities, are impacted by a COVID infection, they could qualify as disabled. Some examples include impaired respiratory, lung, or brain function; impaired function of special sense organs, such as smell and taste; major changes to digestive, neurological or brain functions; impaired ability to walk, concentrate, care for oneself, or interact with others. According to the EEOC guidance, impairment only must severely limit one major bodily function or other major life activity to be considered “substantially limiting.” Limitations in more than one major life activity may be combined to meet the standard of “substantially limiting.”
- Substantially Limiting: This condition is broad and, the EEOC says, shouldn’t require extensive analysis in determining whether an employee is considered disabled. Limitations from COVID don’t necessarily have to meet a certain time frame to be considered substantially limiting, and short-term impairments that are severe can meet this criterion.
- Mitigating Measures: Whether an employee’s COVID complications severely limit a major life activity is determined based on how limited they would’ve been without any “mitigating measures,” such as medical treatment or another step used to decrease or prevent symptoms or other negative side effects. On the other hand, any negative side effects of a mitigating measure, such as a drug reaction, can be considered when deciding if an individual’s infection is “substantially limiting.”
- Episodic Conditions: Even if the symptoms of COVID-19 come and go, it’s considered an actual disability when active. This means, if you have an employee that periodically suffers from bouts of inability to concentrate due to COVID, they can be considered disabled.
Determining whether an employee’s limitations due to COVID qualify (or don’t qualify) based on the above conditions will help protect your practice from ADA complaints, hefty fines, and potential legal action.
Navigating the ins and outs of running a practice during COVID-19 can be complicated, especially with both the pandemic itself and the laws surrounding worker protections changing rapidly. To guide you through some of the COVID-related employment law changes you need to know, check out Healthcare Training Leader’s online training, Cut Practice Liability, Comply with 2021 COVID-19 Employment Laws. In this 60-minute training, Amanda Waesch, Esq., and Bryan Meek, Esq., walk you through key changes to employment laws that protect workers during the COVID-19 pandemic. Access this training today!
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