To date, over 36 million Americans have contracted COVID-19. While the large majority have recovered, some are still experiencing persisting COVID-19 symptoms. On July 26, 2021, the White House announced that such persisting symptoms were known as Long COVID and that its effects would be considered a disability under federal law. In conjunction with the White House’s announcement, the Department of Health and Human Services (“HHS”) and the Department of Justice (“DOJ”) jointly published a factsheet providing further guidance on Long COVID as a disability. Overall, the factsheet makes clear that Long COVID can qualify as a disability in some instances and therefore may be implicated under Title II of the Americans with Disabilities Act (ADA), Title III of the ADA, Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Patient Protection and Affordable Care Act. Thus, Long COVID patients are entitled to the same protections from discrimination as any other person under the ADA, Section 504, and Section 1557. Consequently, businesses and governments may have to give reasonable accommodations to employees with Long COVID.
Long COVID is characterized as persisting COVID symptoms that may include tiredness or fatigue, difficulty concentrating, shortness of breath or difficulty breathing, headaches, dizziness, heart palpitations, chest pains, coughing, joint or muscle pains, depression or anxiety, fevers, or loss of taste or smell. But just being diagnosed with Long COVID alone is insufficient to be a considered a disability. A person with Long COVID must still meet the definition of a person with a disability under the related rules. For instance, under the ADA a person may only be considered to have a disability if they have “a physical or mental impairment that substantially limits one or more major life activities.” For some patients, Long COVID can substantially limit a major life activity, because, for example, it can cause symptoms of memory lapse and brain fog. A person with Long COVID which causes a physical or mental impairment that substantially limits a major life activity of theirs qualifies as a person with a disability.
If an employee requests a reasonable accommodation due to Long COVID symptoms, be sure to engage in the interactive process, as you would with any other employee with a disability. Finally, remember that no accommodations are required where it would pose an undue hardship on the operation of your business.
The attorneys at Fishel Downey regularly advise employers on compliance with federal and state laws in the unique circumstances presented by the COVID-19 pandemic and will continue to offer up-to-date guidance. If you have a specific question or scenario, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.