The Equal Employment Opportunity Commission does not address whether long-term symptoms that individuals experience as a result of contracting COVID-19 are a disability under the Americans with Disabilities Act (ADA). Further, while the Centers for Disease Control and Prevention (CDC) has recognized that some individuals can have symptoms that can last for weeks or even months after recovery from contracting COVID-19, it is continuing to investigate the long-term significance of these effects and whether the symptoms eventually resolve.

Under the ADA, temporary, nonchronic impairments that have little or no long-term impact, such as broken limbs, sprained joints, concussions, appendicitis, the common cold and pneumonia, are generally not considered disabilities. However, these conditions can possibly qualify for disability protection if the residual impact of the temporary impairment (even with mitigating measures) would result in the substantial limitation of a major life activity (e.g., eating, breathing and sleeping). For example, an improperly healed broken leg, resulting in a permanent limp, might be considered a disability. The employer should look at the impairment and consider the nature, severity and duration of the impairment, as well as the impact on the individual’s functioning, when evaluating whether the impairment is substantially limiting. The effects of an impairment lasting or expected to last fewer than six months can be considered substantially limiting. Therefore, a temporary impairment may qualify as a disability under the ADA.

As a result, long-term effects of COVID-19 may be considered a disability under the ADA if these symptoms substantially limit a major life activity. If an employee requests an accommodation due to the long-term symptoms, an employer would need to engage in the interactive process to determine what, if any, accommodations may be needed so that the employee can perform the essential functions of their job and whether the accommodation is reasonable and would not impose an undue hardship on the employer’s business. When evaluating the accommodation request, an employer may ask an employee to provide medical documentation to support a request for an accommodation under the ADA. Information provided by the employee’s health care provider can:

• Confirm or elaborate on information provided by the employee;
• Help determine whether the requested accommodation would pose an undue hardship; or
• Provide ideas for other reasonable accommodations.

Keep in mind that not every accommodation request requires a medical certification. A medical certification is not necessary if the need for an accommodation is obvious and if the requested accommodation is reasonable.

Supervisors and HR should be careful not to conclusively classify a condition as temporary before the employee has provided proper medical documentation. Further, regardless of whether the condition is temporary, an employer may have overlapping obligations under other laws such as the federal Family and Medical Leave Act (FMLA) and applicable state laws.

For instance, when evaluating whether an individual has a disability, a Colorado employer should be aware that an employee may also be entitled to a reasonable accommodation under the Colorado Anti-Discrimination Act (CADA). Under the CADA an individual is disabled if they:

• Possess a physical or mental impairment that substantially limits one or more major life activities;
• Possess a record of such impairment; or
• Are regarded as having such an impairment.

The scope of the CADA is broader than that of the ADA as the CADA generally extends to all employers, other than religious institutions, that employ people within the state, in contrast to the ADA’s coverage of employers with 15 or more employees. Therefore, smaller Colorado employers should be mindful that they may be subject to state law requirements to make reasonable accommodations to employees with disabilities.