The question of whether COVID-19 falls under the Americans With Disabilities Act’s definition of disability (defined as a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment; generally not including short-term or transitory conditions) is still an open issue, but this fact does not mean that employers are not required to engage in a cooperative dialogue with affected employees about reasonable accommodations.  While the ADA may not provide such protection to employees, various federal and state laws have expressly mandated that certain accommodations (such as several weeks’ paid time off, depending on jurisdiction) be provided to COVID-19 affected employees.  Additionally, many state and city laws offer similar protection for people with disabilities and include much more expansive definitions of disability.  For example, both the New York State and New York City Human Rights Laws cover short-term or transitory disabilities, so employers throughout New York must engage in the dialogue and offer reasonable accommodations.

Another issue that frequently presents itself is that employees that have been diagnosed with COVID-19 may have a history of underlying conditions that more directly fit the ADA’s definition of disability.  These employees are likely entitled to reasonable accommodations and employers must engage in a dialogue with these affected employees about their needs, regardless of state or local laws.

An interesting wrinkle on all of this is that the United State Equal Employment Opportunity Commission has determined that, while the ADA may not protect workers diagnosed with COVID-19, that law may grant employers the ability to screen employees and prevent them from entering the workplace if they have been diagnosed with COVID-19, since exposure of other workers can be considered a “direct threat” to the other workers.[1]

As states continue reopening and more and more workers return to job sites, employers must continue to keep these issues in mind to ensure a safe, and legally compliant, reopening strategy.