A few weeks ago, we attended a webinar, Annual Disability & Leave Management Symposium: COVID-19 Style, hosted by Patricia Anderson Pryor and Katharine C. Weber from Jackson Lewis. This webinar was educational, entertaining and explained some unanswered questions that have been boggling our minds, such as, "is COVID-19 a disability?"
We learned a lot during this webinar, from what’s considered a disability, to the importance of providing accommodations to employees in the midst of COVID-19. That’s why we’re sharing our top takeaways that leave managers should know.
Is COVID-19 A Disability?
One takeaway from this webinar is that what’s considered a disability under the Americans with Disabilities Act (ADA) isn’t always straightforward. For instance, many are probably wondering if having COVID-19 is considered a disability. The answer provided by Pryor and Weber was “it depends.” They went on to explain that most individuals who contract COVID-19 will experience flu-symptoms and that these symptoms will be short-lived, while others could be left with long-lasting effects (e.g. fatigue, shortness of breath, cough, chest pain).
Pryor and Weber further explained that impairments that are either transitory or minor do not meet the requirements of a disability under the ADA. Impairments must be both transitory and minor to be considered a disability. Under the ADA, “transitory” is defined as “lasting or expected to last six months or less,” while “minor” is undefined.
Fear not, because Pryor and Weber gave some guidance on what should be considered when it comes to “minor”:
- Symptoms and severity of impairment.
- Type of treatment involved.
- Risk involved.
- Whether any kind of surgical intervention is anticipated or necessary.
- Nature and scope of any post-operative care.
Every case is unique, therefore leave case managers should be deciding whether COVID-19 is a disability on a case-by-case basis. In general, when dealing with accommodation requests, employers should always go through the interactive process.
An example of a reasonable accommodation that can be offered to an employee who’s contracted COVID-19 includes giving them extra breaks because they suffer from shortness of breath. Another example is providing a modified workstation, like offering a chair to an employee who normally stands, due to their joint pain.
While the physiological aspects of contracting COVID-19 may be noticeable (e.g. shortness of breath), the emotional toll of living through a pandemic may not be. Fortunately, Pryor and Weber covered this as well!
Is Fear Of COVID-19 A Disability?
While the question, “is COVID-19 a disability?” has been on every leave case manager’s mind lately, wondering whether the fear of COVID-19 is a disability may be less common. Unfortunately this is also a grey area with the answer being, you guessed it, “it depends!” In short, generalized fear of contracting the virus isn’t considered a disability.
When presented with an employee who requests an accommodation due to this reason, the question that leave case managers should be asking is, “why is the employee making the request?” Having an honest and open conversation with the employee could reveal that they have underlying mental health issues, such as anxiety, depression, or obsessive-compulsive disorder (OCD), and that they may have more difficulty coping with the pandemic. To ease their minds, employers can implement extra safety measures when employees return-to-work, by providing face protection, sanitization and creating physical modifications which separate teams and allows for continued social distancing.
As with any accommodation request, it’s crucial to engage in the interactive process and to provide a reasonable accommodation (e.g. remote work) that addresses the underlying medical condition.
We thought Jackson Lewis’ webinar answered a lot of lingering questions, that many leave case managers had during this chaotic time. We hope that you feel more at ease handling and confident handling these situations while looking out for your number one asset, your employees!
Should you have any questions regarding these topics, please consult your organization’s legal counsel.