Long COVID may be a disability, Biden Says

By Ursula Siverling on September 16, 2021

POSTED IN DISCRIMINATION & HARASSMENT

The Biden Administration announced earlier this summer that Long COVID may qualify as a disability under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act and several other federal statutes offering protection for disabled individuals. The Centers for Disease Control and Prevention has defined “Long COVID” as new or ongoing symptoms of COVID-19 that can last for several weeks or months after an individual was infected with the virus.  Long COVID symptoms can include fatigue, “brain fog,” heart palpitations, joint or muscle pain, dizziness, and depression or anxiety.

The Department of Health and Human Services (“HHS”) and the Department of Justice (“DOJ”) subsequently issued guidance explaining how Long COVID may qualify as a disability under the ADA.  A physical or mental impairment is a “disability” if it substantially limits one or more major life activities, such as eating, breathing, working, etc. The guidance reminds us that the phrase “substantially limits” must be construed broadly and the limitation does not need to be permanent or severe in nature.  The guidance also provides several examples of how Long COVID can substantially limit a major life activity, including the following:

• A person who has lung damage that causes shortness of breath, fatigue and related effects is substantially limited in respiratory function, among other major life activities.
• A person who has 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, concentrating, and thinking.

The guidance goes on to state that Long COVID may not always be a disability and an individual medical assessment will be required to determine whether it creates a substantial limitation of a major life activity.  The EEOC recently issued a statement indicating that it agreed with HHS and DOJ’s guidance relating to Long COVID and that it would be updating its technical assistance on this issue in the next few weeks.

In the meantime, employers should be aware that if a COVID “long hauler” is found to have a disability, they may be entitled to a reasonable accommodation. Examples of a reasonable accommodation could include a leave of absence, remote work, job restructuring or part-time work. Employers do not have to alter or eliminate the essential functions of a job or provide an accommodation that causes an undue hardship to the business.

In addition to the ADA, Long COVID also may be covered by the Family and Medical Leave Act (“FMLA”) since it would be considered a serious health condition.  Employers need to understand the protections provided to employees by both the ADA and the FMLA and train managers and supervisors on the applicability of these laws. Employers also should review their existing leave and accommodation policies and procedures to ensure they can manage Long COVID in the workplace.