Yes, Virginia, COVID-19 can be a disability

Yes, Virginia, COVID-19 can be a disability

Excerpted from an hilarious Constangy Brooks Smith & Prophere LLP blog by the incomparable Robin Shea

“Some of my little friends say that COVID-19 is not protected by the Americans with Disabilities Act. Please tell me the truth; is COVID-19 an ADA-protected disability?”
— VIRGINIA O’HANLON


Virginia, your little friends are wrong. They have been affected by the skepticism of a skeptical age. They do not believe unless the Equal Employment Opportunity Commission says it is true. They think that nothing can be which is not comprehensible by their little minds. All minds, Virginia, whether they be adults’ or children’s, are little. In this great universe of ours the human being is a mere insect, an ant, in his or her intellect, as compared with the boundless world about him or her, as measured by the intelligence capable of grasping the whole of truth and knowledge.

Yes, Virginia, COVID-19 can be an ADA-protected disability. It can be actual, it can be “regarded as,” and one can have a “record” of it. If the COVID substantially limits a major life activity and is not merely transitory and minor, then it qualifies, just as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy.

Alas! how dreary would be the world if COVID were lacking in ADA protection. It would be as dreary as if there were no VIRGINIAS. Even the EEOC has said it is so.

There would be no childlike faith then, no poetry, no romance to make tolerable this existence. We should have no enjoyment, except in sense and sight. The eternal light with which childhood fills the world would be extinguished.

Of course, if the person with COVID is asymptomatic, or has mild symptoms comparable to a cold or the flu, then, alas!, the COVID is not a disability because it is not substantially limiting. On the other hand, if the COVID causes longer-term effects — including headaches, shortness of breath, fatigue, “brain fog,” or heart palpitations — then it might be considered a disability within the meaning of the ADA, as would “long COVID.”

You do not believe COVID can be an ADA-qualifying disability! You might as well not believe in fairies! Why, even if the COVID is not severe but causes another medical condition of the employee to worsen, the employee may be protected based on that. Moreover, this could be the case even if neither the COVID by itself nor the other condition by itself was severe enough to be a “disability.”

But, Virginia, we are constrained to be real. There may be occasions in which an employer lawfully takes action against an employee because of COVID. For example, the “direct threat” defense might allow an employer to keep employees with COVID out of the workplace, “due to the significant risk of substantial harm to the health of others.” And there is no requirement to make reasonable accommodations to a “regarded as” disability.

Disabilities may not be obvious, but that is no sign that there are no disabilities. The most real things in the world are those that neither children nor grown-ups can see. Did you ever see fairies dancing on the lawn? Did you ever see a coronavirus? Of course not, but that’s no proof that they are not there. Nobody can conceive or imagine all the wonders there are unseen and unseeable in the world.

Nonetheless, employers do not have to rely on what they cannot themselves see. They can request supporting medical documentation if an employee asks for a reasonable accommodation for a COVID-related condition. What’s more, they can request a HIPAA authorization so that they can confer directly with the employee’s medical provider.

You may tear apart the baby’s rattle and see what makes the noise inside, but there is a veil covering the unseen world which not the strongest person, nor even the united strength of all the strongest persons that ever lived, could tear apart. Only faith, fancy, poetry, love, romance, can push aside that curtain and view and picture the supernal beauty and glory of our employment law world beyond. Is it all real? Ah, Virginia, in all this world there is nothing else real and abiding.

No ADA protection for COVID! Thank goodness the ADA protection lives, and lives forever. A thousand years from now, Virginia, nay, ten times ten thousand years from now, our employment laws will continue to make glad the hearts of all.

(My apologies to the real Virginia O’Hanlon and Francis Pharcellus Church of the New York Sun.)

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