EEOC Litigates the Issue of Employer Responsibilities under the ADA Regarding “Long COVID” Accommodations

Donovan Estrada, Associate

On September 21, 2023, the Equal Employment Opportunity Commission (the “EEOC”) filed a complaint against A&A Appliance, Inc. (“A&A Appliance”), alleging that it violated the Americans with Disabilities Act (the “ADA”) when it declined to grant an employee’s request for additional leave from work after her FMLA leave expired in order to further address symptoms and ailments resulting from long COVID.  Given previous federal guidance on long COVID’s status as a condition which may cause a disability under the ADA, this case could set further precedent as to the EEOC’s treatment of long COVID as a potential source of protected disabilities that must be reasonably accommodated by employers.   

The EEOC's Case Against A&A Appliance

            The EEOC has alleged three claims under the ADA against A&A Appliance: 1) failure to accommodate; 2) discrimination based on disability; and 3) retaliation.  Per the EEOC’s complaint (the “Complaint”), filed in the United States District Court for the District of Colorado, Ms. Karima Javanzad was a sales associate at A&A Appliance who was granted FMLA leave after contracting COVID-19 and developing complications from COVID-19, including gastrointestinal distress and vocal cord dysfunction.[1]  Ms. Javanzad’s condition worsened, and she was subsequently diagnosed with vocal cord paralysis and gastritis which, according to the EEOC, substantially limited her life activities of eating, swallowing, and speaking. 

         The EEOC alleges that after Ms. Javanzad’s FMLA leave entitlement expired, A&A Appliance denied her request for a leave extension without explanation and gave her the choice to either return to work or resign, despite her continued gastrointestinal problems.  In particular, the EEOC alleges that A&A Appliance never engaged in any interactive process with Ms. Javanzad to determine whether a reasonable accommodation existed that could address her disability resulting from her long COVID-related ailments, terminated Ms. Javanzad because of her long COVID-related disability, and retaliated against Ms. Javanzad by seeking an accommodation in the form of extended leave, notwithstanding that her FMLA leave had expired.             

Federal Guidance On “Long COVID” As A Disability Under The ADA

         The A&A Appliance case raises interesting questions regarding the intersection of existing federal laws with the novel challenges presented by the COVID-19 pandemic and the concept of long COVID as both a medical condition and a source of potential employment disability.  The Center for Disease Control and Prevention (the “CDC”) defines long COVID as long-term symptoms of COVID-19 that last months after the initial infection.[2]  These symptoms can include fatigue, brain fog, breathing difficulties, and even damage to organs.  The Office for Civil Rights of the Department of Health classifies long COVID as a disability under the ADA when it significantly interferes with one or more “major life activities,” ranging from tasks like eating and breathing to cognitive functions like thinking or concentrating.[3]  Moreover, because long COVID only qualifies as a disability under the ADA in the circumstances described above, an individualized assessment of the symptoms and their effects on the employee’s ability to perform major life activities is necessary in each case to determine whether the condition is protected as a disability by the ADA.  

          Thus, in the context of the EEOC’s lawsuit against A&A Appliance, a critical initial question will be whether Ms. Javanzad’s inability to eat, swallow, or speak as a result of long COVID and its related complications is considered a “disability” that is subject to the protections of the ADA and likewise triggered A&A Appliance’s duty to attempt to reasonably accommodate that disability, assuming that she could still perform the essential functions of her job with or without a reasonable accommodation.  

Employer Considerations

            The implications of the A&A Appliance litigation could be significant for Colorado employers who are struggling to address the concept of “long COVID” and whether it may give rise to disabilities that must be reasonably accommodated in the workplace.  Given the EEOC’s Complaint allegations against A&A Appliance, it is clear that the EEOC is taking an aggressive position to encourage employers to treat long COVID the same as other persistent illnesses which could give rise to covered disabilities under the ADA, and employers should pay particular attention to employee requests for accommodations that are premised on long COVID and its effects.   

Campbell Litigation will continue to monitor the ongoing litigation between the EEOC and A&A Appliance, Inc. and will provide updates accordingly.

[1] EEOC v. A&A Appliance, Inc., No. 1:23CV02456, Complaint at 7, D. Colo., Sept. 21, 2023.

[2] See Centers for Disease Control and Prevention, Long COVID or Post-COVID Conditions, (last visited Oct. 24, 2023, 10:07 AM), https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects/index.html.

[3] See Office for Civil Rights, U.S. Dep't of Health & Hum. Servs., Guidance on "Long COVID" as a Disability Under the ADA, (last visited Oct. 24, 2023, 10:07 AM), https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-covid-disability/index.html.