By Julie M. Ryan
When COVID-19 symptoms continue for more than four weeks after initial infection, a person may have “long COVID.” According to the Centers for Disease Control (“CDC”), a person with long COVID may experience life-disrupting fatigue, fever, shortness of breath, “brain fog,” digestive issues, joint or muscle pain, and more.
Employers need to be aware that long COVID may qualify as a covered disability under the Americans with Disabilities Act (“ADA”), which in the work-context is aimed at protecting qualified employees with disabilities from discrimination.
The basic framework to determine whether any condition is a covered disability under the ADA applies just the same to an analysis of an employee’s long COVID. Under the ADA, “disability” means either (1) a physical or mental impairment that substantially limits one or more major life activities of the individual, i.e., an actual disability; (2) a “record of” such an impairment; or (3) “being regarded as” having such an impairment.
According to the U.S. Equal Employment Opportunity Commission (“EEOC”) and Department of Health and Human Services (“HHS”), long COVID qualifies under the ADA as a physical or mental impairment as it can damage one or more body systems (e.g., lungs, heart, kidneys, etc.).
Additionally, the EEOC and HHS recognize long COVID can substantially limit major life activities. Major life activities explicitly listed under the ADA include concentrating, working, and other functional tasks. A major life activity can also involve operation of major bodily functions, such as one’s immune or gastrointestinal systems. For example, an employee with a long COVID symptom of shortness of breath is likely substantially limited in respiratory function. As such, the employee’s long COVID would be a protected disability under the ADA.
However, the EEOC has provided that “A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other
consequences—will not have an actual disability within the meaning of the ADA.”
The disability analysis will vary from individual-to-individual. There may be some instances in which long COVID is not considered a disability under the ADA.
For a qualified employee whose long COVID is an ADA-covered disability, that triggers their entitlement to certain rights under the ADA; provided they give their employer sufficient notice in the event the condition is not obvious or already known. In response to a request for an accommodation, the employer needs to consider what, if any, reasonable accommodations are available and required to address the employee’s long COVID. This may include changes to work location or hours or special equipment. An employer may reject a request due to an “undue hardship,” upon consideration of particular factors set forth in the ADA.
Alternatively, an employer may choose to provide an employee with an accommodation even when not technically required to do so by the ADA.
For more information, please contact Employment Law Attorney Julie M. Ryan at [email protected]