It seems that COVID-19 is preventing employers from catching their breath at every turn. We discussed on this blog how employers should deal with employees working from home, reopening and complying with laws and CDC guidelines, mask and vaccine regulations, and what to do if an employee tests positive for the virus . Now another issue arises for employers: How can workers best be accommodated who have symptoms of COVID months after they have been infected with the virus – long COVID -?
On July 26, 2021, the U.S. Department of Health and Human Rights for Civil Rights (HHS) and the U.S. Department of Justice for Civil Rights (DOJ) jointly released guidance on whether long-term COVID can be considered a disability under the non-discrimination provisions of ADA, Section 504 of the Rehabilitation Act and Section 1557 of the Affordable Care Act. They concluded that this is the case in certain cases.
A brief introduction to long COVID
The immediate symptoms of a COVID-19 infection are as notorious today as they are countless – fever, nausea, shortness of breath, tiredness, loss of taste or smell, etc. But as vaccination rates continue to rise, attention is directed towards so-called “long COVID” and those “Long-distance runners” still suffer months after their initial infections. According to the CDC, these symptoms are a wide range of new, recurring, or ongoing health problems that people can experience four or more weeks after the first infection. ”Similar to immediate symptoms, the extent and severity of long-term COVID symptoms vary widely from person to person; sometimes mild and intermittent, sometimes severe and ubiquitous. The CDC notes that this is not uncommon for viruses and patients in general, “scientifically speaking, it is a mystery.”
Until this puzzle is resolved, employers must decide how to responsibly accommodate long-distance drivers in their ranks.
When is Long COVID a Disability?
According to the guidelines, although an employer is “not automatically qualified as a disability” as with any disability examination, an employer is obliged to work cooperatively with a sick employee in order to carry out an “individualized assessment” and determine whether the long-term COVID symptoms do so Physical or mental impairments that significantly limit one or more important life activities.
The guidelines make it clear that “the term ‘substantially limited’ in these laws is interpreted broadly and should not require extensive analysis”. Nonetheless, HHS and the DOJ have provided three possible (but not comprehensive) examples of where long-term COVID would be viewed as a disability:
- an employee with severely impaired respiratory function due to lung damage
- an employee with severely impaired gastrointestinal function (frequent bowel pain, vomiting, and nausea); and
an employee with significantly reduced cognitive function or “brain fog”.
The guidelines emphasize that symptoms do not necessarily have to manifest themselves physically – for a long time, COVID can affect a person’s psychological or emotional well-being so much that adjustment may be required.
What employers should know
The guidance, like our understanding of long-term COVID, is frustratingly vague. The silver lining is that any employer already addressing their employees’ housing needs is already well positioned to address the needs of employees with long-term COVID symptoms. Employers should not fall victim to tunnel vision and determine whether a worker’s symptoms are due to COVID per se.
Rather, they have to concentrate on the fundamental question: do these symptoms significantly limit my employee’s performance?
As with any illness, the content of a subsequent “cooperative dialogue” between employer and employee can vary widely, depending on the employee’s tasks, symptoms and advice from their health care providers. Of course, any employer can make the reasoned request for an employee to produce a medical certificate to substantiate a request for placement under the ADA, but simply making that request to an employee does not release an employer from making reasonable efforts to to contact this agent to determine what accommodations, if any, are available.
Planning for the future
Employers should also anticipate ongoing and evolving discussions about placement, especially if the employee is actually a long distance COVID driver. The long-term effects of COVID infection are not yet fully understood, and the best prepared employer is one who is willing to adapt not only sensibly but quickly to a worker’s needs.
That can mean different things.
- DOCUMENT. For anyone in a human resources role, it will be crucial to (safely) remember the content of any discussion of an employee’s placement requests. At the same time, be sure to seize and secure all medical records, and work to ensure confidentiality.
- EVALUATE REGULARLY. Because so little is known about COVID for a long time and symptoms can suddenly subside or worsen over time, employers should require affected workers to agree on pre-arranged “check-in” meetings. At some point in the future, the employer and employee may meet again to consider what additional (or less) accommodation the employee may need. However, this is a sensitive issue and is best done in cooperation with a qualified legal counsel.
- BE FLEXIBLE. If an employee needs accommodation for a longer period of time due to COVID, you can respond flexibly to their wishes. Think about whether you can grant the accommodations and document why you can or not. Finally, before refusing placement, make sure that there is now a reasonable way to grant placement.
Whether the problem is discreet or you want to develop a general policy that could affect any employee, it is always advisable to consult an outside lawyer. This ensures that you are informed of the locally applicable laws and regulations regarding accommodation for the disabled, especially COVID-related accommodation.
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.
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