EEOC: Appliance store denied accommodation to, terminated employee with long COVID

Dive Brief:

A&A Appliance, Inc., known as Appliance Factory, violated the Americans with Disabilities Act when it refused to provide reasonable accommodations to, and then terminated, an employee with long COVID, the U.S. Equal Employment Opportunity Commission stated in a news release Friday.
According to a lawsuit the EEOC filed Sept. 21, an employee at Appliance Factory’s location in Thornton, Colorado, began experiencing symptoms associated with long COVID in March 2020. She worked with an HR specialist to take 12 weeks of Family and Medical Leave Act leave, with an expiration set for early June. In the days leading up to her anticipated return, the employee requested an extension of her leave and provided a doctor’s note advising she remain out of work until she could have an endoscopy to address lingering symptoms related to her suspected COVID-19 diagnosis.
The HR specialist did not respond until after the employee’s leave had expired, at which point she told the employee she could return to work or resign. The employee was terminated the following day, with Appliance Factory stating that the employee’s gastrointestinal illness was unrelated to the COVID-19 diagnosis that precipitated the initial request for FMLA leave. Appliance Factory did not respond to a request for comment by press time.

Dive Insight:

Over the past few years, employers have been wrestling with how to deal with long COVID in the workplace, including how to understand their legal obligations.

In July 2021, long COVID was recognized as a condition that could cause a disability under the Americans with Disability Act, and the U.S. Department of Health and Human Services released guidance to help employers navigate workers’ civil rights protections with respect to the disability.

Given the difficulty of establishing a long COVID diagnosis and the exhaustive list of potential symptoms, disability experts have advised employers to not “get bogged down in determining a disability” and instead to focus on reasonable accommodation options. In February 2022, the EEOC filed suit against a trucking company that fired workers unable to return to work after 12 weeks of leave, reminding employers that additional leave — beyond an employee’s exhaustion of FMLA leave — may be required as a reasonable accommodation under the ADA.

Notably, the case against Appliance Factory shows the EEOC is willing to consider long COVID disability cases from early in the pandemic, before it was fully clear the condition existed (a National Library of Medicine study attributes the emergence of the term to a tweet from late May 2020, noting that the media and scientific community began to take it more seriously in the mid-to-late summer).

The case may be a reminder for employers not to get too preoccupied with a particular disability’s recognizability — as experts have advised — but rather to focus on the ADA’s definition of “a physical or mental impairment that substantially limits one or more major life activities.”