Long COVID: Accommodating a slippery fish – Lyerly – 2022 – Campus Legal Advisor

Jennifer E. Engen

Long COVID isn’t a disease itself but rather the manifestation of various long-term symptoms associated with the COVID-19 virus. In all, the CDC has identified 18 symptoms one can experience from long COVID, ranging from a cough and headache to cognitive loss and autoimmune problems (see CDC, Post-COVID Conditions (updated Sept. 16, 2021)).

The Office for Civil Rights has stated long COVID can be a disability under Section 504 of the Rehabilitation Act (see U.S. Department of Education Offices for Civil Rights and Special Education and Rehabilitative Services, Long COVID under Section 504 and the IDEA (July 26, 2021)). Likewise, the U.S. Departments of Justice and Health and Human Services have maintained that long COVID can be a disability under Section 504 and Title II of the Americans with Disabilities Act (see U.S. Departments of Justice and Health Human Services, Guidance on “Long COVID” as a Disability Under the ADA, Section 504 and Section 1557 (2021)).

Federal law is already broad as to what constitutes a disability. Any physical or mental impairment that “substantially limits” one or more major life activities qualifies as a disability under Title II and Section 504. HHS defines long COVID as a “physiological disorder” affecting one or more body systems, a definition embracing physical and mental impairments.

Major life activities include a wide array of behaviors: seeing, hearing, eating, sleeping, walking, standing, sitting, and almost any other bodily function. HHS insists the term “substantially limits” doesn’t require an impairment to be severe, permanent, or long term. In fact, a long COVID-related impairment can be substantially limiting even if it “comes and goes.”

To reiterate, long COVID can be a mental or physical impairment that affects a student’s ability to perform manual tasks, walk, stand, sit, learn, think, communicate, or write. Sound broad?

Long COVID is a slippery fish and, therefore, creates serious compliance challenges for higher ed administrators, including disability services personnel. It isn’t discreet sickness; it’s a set of symptoms with a causal connection to the COVID-19 virus. It can be, but isn’t always, a disability. It can even aggravate students’ existing disabilities and require new academic adjustments.

Neither Section 504 nor Title II require institutions to identify students with long COVID — which might be impractical given its nebulous definition. However, when such a student requests accommodations or modifications, colleges and universities must perform individualized assessments to determine whether their symptoms limit a major life activity for the student.

Review documentation of a student’s disability

An institution must determine whether a student has provided sufficient documentation to establish that their COVID-related disability warrants academic adjustments.

Many doctors use a person’s past positive COVID-19 tests to diagnose post-COVID conditions (although some researchers suggest a positive test isn’t prerequisite for a diagnosis) (see Trish Greenhalgh et al., “Management of Post-Acute COVID-19 in Primary Care,” The BMJ (August 2020)). A past positive COVID-19 test may be sufficient but not necessary proof of a student’s condition.

If a student provides documentation from a medical provider noting their symptoms and the symptom’s relationship to COVID-19, they have potentially provided reasonable evidence of their disability.

Long COVID is a slippery fish and, therefore, creates serious compliance challenges for higher ed administrators.

Be flexible with academic adjustments and modifications

HHS and OCR provide limited guidance on what modifications are reasonable and necessary for long COVID symptoms.

For example, a university might provide a student who has breathing and walking difficulties with an opportunity to register for a schedule with minimal distance between classes. Likewise, an institution might provide additional time on exams for students with difficulty concentrating due to long COVID.

Because post-COVID conditions come in many forms, institutions should tailor adjustments and auxiliary aids to ameliorate a student’s particular symptoms (rather than long COVID generally).

Fortunately, many higher ed administrators, including disability professionals, have experience accommodating the conditions that accompany long COVID. Reviewing past adjustments may provide a framework for considering new and effective modifications for students with long COVID.

Higher ed administrators, including disability services personnel, should also consider working with general counsel in cases where novel symptoms demand creative modifications.


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