Long Haul COVID-19 and the ADA: What Employers Should Know | Rumberger | Kirk

As we prepare to enter into year three of the COVID-19 pandemic, we thankfully have made important advances with vaccines and boosters to curb the threat of severe illness and death from COVID-19.  For most, the effects of a COVID-19 diagnosis dissipate after their isolation period. But that is not the case for others. Millions of COVID-19 survivors remain at risk of developing an array of long term symptoms that scientists call long haul COVID-19.

On July 26, 2021, President Biden announced his administration’s intent to apply protection under the Americans with Disabilities Act (“ADA”) to individuals suffering from long haul COVID-19. The Biden Administration also published joint guidance from the Departments of Justice and Human Services (the Joint Guidance) that specifically states that long haul COVID-19 can be an “actual disability” under the ADA.

What is Long Haul COVID-19?

COVID-19 “long-haulers,” as they have been termed, describes a group of people who suffer from long-term effects of a coronavirus infection, which substantially limits their ability to work the way that they used to prior to their diagnosis.  The Centers for Disease Control and Prevention (CDC) defines long haul COVID-19 as having health problems that last four or more weeks after first getting infected with COVID-19 and that can worsen with physical or mental activity.

More than one in four COVID-19 patients develop long-haul symptoms lasting for months – even if they had mild cases.  These problems can include a continuation of symptoms from an active infection.  But they may also result in symptoms that did not exist while infected.  Common symptoms include one or more of the following:

  • Shortness of breath
  • Trouble breathing
  • Difficulty sleeping
  • Muscle and/or joint pain
  • Headaches
  • Trouble concentrating, thinking, and/or remembering
  • Dizziness
  • Fatigue
  • Diarrhea
  • Coughing

Americans with Disabilities Act of 1990

The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public.  The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else. 

In the context of the ADA, “disability” is a legal term rather than a medical one. Because it has a legal definition, the ADA’s definition of disability is different from how disability is defined under some other laws, such as for Social Security Disability related benefits.  The ADA defines disability as a physical or mental impairment that substantially limits a major life activity such as walking, talking, seeing, hearing, or learning.  The term “substantially limits” is broadly construed, and physical or mental symptoms that come and go can qualify as a disability if they substantially limit a major life activity when active.

Rights under the ADA

Under the ADA, employees are entitled to reasonable accommodations if they have a mental or physical impairment that meets the definition of disability, are qualified for the job, and work for an employer that has at least 15 employees (though not specifically addressed in this article, a person may also be entitled to ADA protections if he or she has a record of a disability or is regarded as a person with a disability).  People diagnosed with long haul COVID-19 are entitled to the same protections from discrimination as any other person with a disability under the ADA.

Long-term effects of COVID-19 do not always qualify as a disability under the ADA. An individualized assessment, taking into account an employee’s specific symptoms and the effect those symptoms have on the employee’s major life activities, is necessary to determine whether a person’s long haul COVID-19 condition meets the requirements for application of the ADA. 

On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance to add a new section clarifying the circumstances under which COVID-19 may be considered a disability under the ADA (https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws).  Specifically with regard to long-haul COVID-19, this technical guidance identifies the following situation as an example of when the ADA would apply:  “[a]n individual diagnosed with ‘long COVID,’ who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA.  On the other hand, an applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks—with no other consequences—will not have an actual disability under the ADA.   

Employer Response and Possible Accommodations

Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it and where the accommodation is not an undue hardship for the employer (something that causes significant difficulty or expense).  Possible accommodations can include:

  • Leave
  • Part-time or modified work schedules
  • Job restructuring
  • Reassignment to another position or work station

Employers should treat employees with long haul COVID-19 the same as they would any other employee with a potential disability under the ADA.  This requires a case by case analysis, with careful consideration given to (i) whether there is a physical or mental impairment that substantially limits a major life activity and, if so, (ii) whether there is a reasonable accommodation that can be implemented which does not cause an undue hardship to the employer.  Given the rapidly developing nature of COVID-19-related conditions, it is always a good idea to consult with an attorney before taking any adverse action against an employee who complains of COVID-19 symptoms.

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