Employer Steerage for Lengthy COVID as a Incapacity

The US Department of Health and Human Services and the US Department of Justice issued new guidelines on July 26th that clarify “long COVID”, and their potentially debilitating effects, can disability under Title II (under application of state and local governments) and III being (application to public housing) of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Patient Protection and Affordable Care Act. This tour came on the heels of the 31st anniversary of the ADA and “[i]n Light of the long rise in COVID as a persistent and significant health problem. “[1]

While this new guidance does not recognize every instance where COVID-19 or “long COVID” is a disability, it should be clarified that “long COVID may be a disability under ADA, Section 504 and Section 1557 if it is substantial limited or more important life activities. “[2] According to the Center for Disease Control and Prevention (CDC), individuals experiencing long-term COVID – so called “long haulers” – may experience (non-exhausting) tiredness or exhaustion, difficulty thinking or concentrating, shortness of breath or shortness of breath, headache, dizziness when standing , Palpitations, chest pain, cough, joint or muscle pain, depression or anxiety, fever, or loss of taste or smell.[3] Others can develop organ damage or autoimmune diseases.[4] Because of the potential for long-term symptoms that persist for weeks or months after being infected with COVID-19, a long-term COVID-19 can now represent physical or mental impairment as defined in ADA, Section 504 and Section 1557.

It is crucial that the DHS and new guidelines carve out of Title I of the ADA DOJ, which applies to private employers. And this guide doesn’t suggest that COVID is always a handicap. Instead of this, “[a]n Individual assessment is required to determine whether a person’s long-term COVID condition, or any of their symptoms, essentially limits a great deal of life activity. “[5]

Although these new guidelines do not apply to private employers, the US Department of Labor has updated their website with resources to request and provide workplace accommodations for those with long-term COVID.[6] The following steps are recommended for employers to assess whether reasonable precautions are necessary for employees to experience the effects of long-term COVID:

  • Check the disability property’s company policies or other company documents addressing compliance with ADA and other federal and state laws.

  • Engage employees in the company’s interactive process to determine the extent of the employee’s long-term COVID symptoms and whether they are affecting his or her ability to perform one or more major life activities (e.g., seeing, hearing, eating, walking, standing, sitting, grasping, etc. .).

  • Consider what adjustments, if any, can be made to an employee’s work environment in order to cope with the effects of COVID-19 and enable the employee to continue performing the essential functions of their role.

[1] Instructions for the “Long COVID” as a Disability Under the ADA, Section 504 and Section 1557 (July 26, 2021).

[2] ID.

[3] Centers for Disease Control and Prevention, Post COVID Conditions (last visited August 3rd, 2021).

[4] ID.

[5] See footnote 1.

[6] COVID-19 and Lange COVID-19 (last visited August 3, 2021).

Copyright © 2021 Nelson Mullins Riley & Scarborough LLPNational Law Review, Volume XI, Number 225

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