Since the COVID-19 pandemic began, many people have caught (or know others who have contracted) the virus. Most who recover from the infection do so within a couple weeks or shortly thereafter. For some, however, the symptoms have persisted for months after contracting the illness. The condition has become so common it’s now dubbed as “long COVID” and its victims as “long-haulers.”
In light of the developments, the Office for Civil Rights of the U.S. Department of Health and Human Services (HHS) together with the Civil Rights Division of the U.S. Department of Justice (DOJ) recently provided guidance on long COVID under the Americans with Disabilities Act (ADA) and other federal laws protecting employees with disabilities from discrimination. Under the ADA, when long-haulers’ long COVID symptoms rise to the level of a disability, they may be entitled to reasonable workplace accommodations. Let’s take a closer look.
Long COVID as ADA Disability
Of the some 34 million Americans who have been diagnosed with COVID-19, approximately 10 percent could become long-haulers, according to estimates. Those suffering from long COVID have reported suffering a litany of long-term symptoms including respiratory complications, fatigue, shortness of breath, dizziness, cognitive impairment, sleep disorders, fevers, gastrointestinal symptoms, and depression (and other emotional and behavioral disorders) that range from mild to incapacitating.
The length of time the long-haulers’ symptoms can persist and their severity have led to the recognition that long COVID could rise to the level of a disability under the ADA.
Under the ADA, a disability can include a physical or mental impairment that substantially limits a major life activity:
- A “physical impairment” can include any physiological disorder or condition affecting one or more body systems, such as the neurological, respiratory, cardiovascular, and circulatory systems.
- A “mental impairment” is defined as any mental or psychological disorder, such as an emotional or mental illness.
Some individuals suffering from long COVID experience lung damage, heart damage or inflammation, kidney damage, neurological damage, damage to the circulatory system, and lingering emotional illness and other health conditions, according to the HHS and DOJ guidance.
Examples From HHS, DOJ Guidance
The HHS and DOJ guidance makes clear an individual assessment is required, and not all long-term effects of COVID-19 will rise to the level of a disability under the ADA. Nevertheless, the guidance provides examples of when the Act’s protections would kick in:
- An employee who has lung damage from COVID-19 that causes long-term shortness of breath, fatigue, and related effects is substantially limited in respiratory function among other major life activities.
- An individual with symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function.
- A person who experiences memory lapses and brain fog is substantially limited in brain function, concentration, and thinking.
A long-hauler whose COVID-19 symptoms qualify as a disability under the ADA is entitled to reasonable workplace accommodations:
- A leave of absence may be appropriate depending on the circumstances.
- In other situations, offering remote or part-time work or job restructuring may be a way to accommodate the employee’s condition while also keeping her engaged in work.
As always, you don’t have to eliminate essential job functions in the name of providing a reasonable accommodation. Nevertheless, you should engage in the interactive process to determine the employee’s limitations because of long COVID and how they might be accommodated while still requiring her to perform the essential functions.
First, if employees are dealing with long COVID symptoms, you should engage in the interactive process just as you would with any workers suffering from a more “recognized” disability.
Second, keep in mind long COVID symptoms may qualify as a serious health condition under the Family and Medical Leave Act (FMLA), entitling the employee to leave under that law as well.
Finally, because long COVID may implicate the ADA, the FMLA, and other laws, you should take the opportunity to educate HR personnel and frontline managers on the HHS and DOJ guidance and train/retrain them on your company’s obligations when those kinds of issues arise.