As we enter these colder months with the winter season around the corner, it is likely that employers will see an increase in the number of employees who get infected with COVID-19. While many people with COVID-19 feel better within weeks of the start of the infection, some people continue to experience a wide range of physical, mental, emotional, and psychological symptoms which can potentially last months after being first infected. Other people may also find that they are experiencing new COVID-19 symptoms or recurring symptoms at a later time. The scientific name for this medical condition is Post-Acute COVID-19 Syndrome or long COVID. Even if the initial onset of a COVID-19 infection was mild, it is still possible to for someone to suffer from long COVID. Sometimes people with this condition are called “long-haulers.” Why should employers care about this? It is important for employers to understand and be aware that the U.S. Equal Employment Opportunity Commission (the “EEOC”) has previously issued guidance identifying post-COVID conditions as a disability that may qualify for protection under the Americans with Disabilities Act (the “ADA”). Now that seasons have changed and there will likely be an uptick in the number of COVID-19 cases, there may be an increase of employee requests for accommodations under the ADA because of having long COVID. In this article we will discuss what it means to have long COVID and what employers need to know about making accommodations for employees with long COVID under the ADA based on the EEOC’s guidance.
First, it is important for employers to understand what it means to be a “long-hauler.” The Centers for Disease Control and Prevention (the “CDC”) defines a person with long COVID as one with health problems that last four or more weeks after first getting infected with COVID-19 and that can worsen with physical or mental activity. It should be noted that more than one in four COVID-19 patients will develop long COVID symptoms lasting for months, even if they had a mild COVID case. While long COVID problems may include a continuation of symptoms from an active COVID infection, they may also result in symptoms that did not exist while infected. Common symptoms of long COVID may include one or more of the following:
Tiredness or fatigue;
Difficulty thinking or concentrating (sometimes called “brain fog”);
Shortness of breath or difficulty breathing;
Headache;
Dizziness on standing;
Fast-beating or pounding heart;
Chest pains;
Cough;
Joint or muscle pain;
Depression or anxiety;
Fever;
Lost of taste or smell;
Lung damage;
Heart damage, including inflammation of the heart muscle;
Kidney damage;
Neurological damage;
Damage to the circulatory system resulting in poor blood flow; and
Lingering emotional illness and other mental health conditions.
Employers must note that this list of symptoms of long COVID is not exhaustive.
Secondly, employers must determine whether an employee’s long COVID is covered as a disability under the ADA if an employee requests an accommodation to be made under the ADA. Employers must remember that 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 deemed to be a legal term with a legal definition rather than a medical one. 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. It should be noted that the term “substantially limits” is broadly construed, and physical or mental symptoms that may be temporary can qualify as a disability if they substantially limit a major life activity when active. There is no actual list of medical conditions that meet the definition of disability as each case is determined based on an individual’s specific limitations.
The EEOC guidance states that a person with long COVID has a disability if the person’s condition or any of its symptoms is a “physical or mental” impairment that “substantially limits” one or more major life activities. However, employers should note that there are some instances where long COVID is not always considered a disability. Hence, employers must conduct an individualized assessment to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity.
Thirdly, it is important for employers to recognize that they must have a process in place to handle accommodation requests under the ADA in a manner to ensure they avoid the pitfalls that can lead to lawsuits for discrimination. As discussed above, there may be no outward signs of disability as a person’s long COVID symptoms may not be overt or obvious. Hence, employers must train managers to remove their personal or political beliefs about COVID and recognize when an employee is asking for an accommodation related to their disability. Managers should also be trained to begin the interactive process with the employee to determine if a reasonable accommodation could or should be made. Employers should remember that reasonable accommodations are modifications or adjustments provided to the employee to enable the employee with a disability to enjoy equal employment opportunities. Some reasonable accommodations for an employee suffering from long COVID may including a period of intermittent or extended leave for purposes of recovery or treatment, as well as modification of work schedules, job duties, or other terms and conditions of employment. Employers should note that they are not required to provide an accommodation that permanently alters an employee’s essential job functions, and/or that creates an undue hardship for the employer.
The bottom line is that employers should typically assume that an employee’s long COVID symptoms will qualify as a disabling condition, so employers must be prepared to address leave and other accommodation requests from employees suffering from long COVID. Employers must conduct individual assessments on a case-by-case basis after engaging in an interactive process with the employee and, when needed, should consult with legal counsel to ensure compliance with the ADA and all other federal, state and local laws.
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