On July 26, 2021, the Biden Administration announced that “long COVID” – a condition in which some people continue to experience COVID symptoms long after the acute phase of infection –could be considered a disability under the Americans with Disabilities Act. Specifically, the U.S. Department of Justice and U.S. Department of Health and Human Services released guidance on when long COVID is considered a disability under certain sections of the Americans with Disabilities Act and similar laws that involve rules for government services and public accommodations (i.e., services companies provide to the public).
The new guidance specifically stated that employment issues were outside its scope and, therefore, did not address reasonable accommodations or discrimination in employment. Indeed, the Equal Employment Opportunity Commission, not HHS or DOJ, regulates and enforces the employment sections of the ADA. The EEOC has not released any specific guidance on when long COVID may be a disability or what may be reasonable accommodations. This HHS/DOJ guidance, however, is likely writing on the wall for how the EEOC may view employers’ obligations for COVID “long haulers.” Further, it may be used by employees or plaintiff attorneys seeking an accommodation in the workplace or arguing they were discriminated against. This is especially true because the employment provisions of the ADA share the same definition of “disability” with the provisions regulating government services and public accommodations.
Overview of long COVID and the guidance
Persons with long COVID – also known as “long haulers” – are those who continue to experience COVID-19 symptoms for weeks or months after being infected. The continuing symptoms can include, among other things, damage to multiple organs, difficulty concentrating, fatigue, shortness of breath, cough, depression or anxiety, headaches, and joint or muscle pain.
The new HHS/DOJ guidance states that long COVID is a physiological condition that affects one or more body systems and can cause physical or mental impairment. To qualify as a disability under the ADA, a condition must not only be a physical or mental impairment, but it must also substantially limit major life activities. Because long COVID can substantially limit major life activities, depending on the symptoms and circumstances, the guidance states that some long COVID conditions may qualify as a disability. For example, if a person experiences memory lapses or difficulty concentrating as a result of long COVID substantially limiting their brain function or thinking, that person would be considered disabled. The guidance also states that not every case of long COVID results in a disability and that an individual assessment is required to properly diagnose a person’s condition.
Like employers, governments entities and companies providing public accommodations must provide reasonable accommodations. The guidance provides examples of what might be reasonable accommodations. Examples of reasonable accommodations include allowing an individual who experiences dizziness to have a service animal trained to stabilize them, or providing additional time on an exam to a student who has difficulty concentrating.
How should employers react to the guidance?
The EEOC has always taken the position that COVID-19 could be considered a disability under certain circumstances. This new guidance bolsters claims that long COVID can also be a disability.
Some best practices of how employers should treat employees with long COVID include:
- Do not assume that an employee still experiencing symptoms is not disabled merely because they are no longer COVID-19 positive;
- If an employer is aware of an employee’s continuing long COVID symptoms or diagnosis, the employer should engage in the interactive process;
- Each employee’s long COVID symptoms and effects of those symptoms should be treated on a case-by-case basis to determine if the employee is considered disabled;
- Employers may, under certain circumstances, have employees provide medical certification of their long COVID symptoms and the effects on the employee’s ability to perform his or her job duties;
- If it appears that an employee may be considered disabled because of long COVID, the employer should determine what, if any, reasonable accommodations are available for the employee like it would with any other disability;
- Stay updated on any additional guidance that may come from the EEOC on long COVID; and
- Engage counsel to deal with these changing and complex issues.