Key to remember:  Under certain circumstances COVID-19 may be considered an ADA disability, so employers need to also consider whether it can be an FMLA serious health condition.

Applies to: All public employers and private employers with 50 or more employees.

Impact to customers: EEOC’s guidance can help customers determine whether an employee’s COVID warrants a reasonable accommodation and we can help with the FMLA leave.

On December 14, the Equal Employment Opportunity Commission (EEOC) added information to its guidance on “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” While it does not talk about the FMLA, it serves as a reminder that the two laws can intersect, and the basics still apply.

Employees with COVID have an actual disability if their condition or symptoms is a physical or mental impairment that substantially limits one or more major life activities. COVID is a physiological condition affecting one or more body systems, therefore, it is a physical or mental impairment under the ADA. That does not, however, mean that all employees with COVID have a disability or are entitled to a reasonable accommodation, which often includes time off.

Determining whether a particular employee’s COVID is an actual disability always requires an individualized assessment. No getting around that.

A couple examples help illustrate:

An employee diagnosed with COVID who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating caused by the virus is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities. This employee has a disability.

An employee who is diagnosed with COVID who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, does not have an actual disability. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.

What about the FMLA?

For the FMLA, it comes down to a certification. If an employee tests positive for COVID, even if asymptomatic, and asks for leave, recognize this situation as a potential need for FMLA leave. Provide the required notices. Request a medical certification, which can help determine if the leave should be designated as FMLA leave.

If the certification advises of the need for leave for the quarantine period, it seems logical that the doctor’s input along with CDC Guidance requiring a quarantine period provide the necessary basis to designate the absence as FMLA leave.