Lengthy COVID and Psychological Well being Considerations Create New Challenges

Thursday, August 19, 2021

On July 26, 2021, the Department of Justice (DOJ) and Department of Health (DHS) issued guidelines defining “long-term COVID” and classifying the condition as a disability under Section 504 of the Americans with Disabilities Act (ADA) of the Rehabilitation Act (Section 504) and Section 1557 of the Affordable Care Act (Section 1557). The symptoms that a long-term COVID creates can result in an employee being eligible for a disability if they severely limit one or more important life activities. As we learn more about COVID and its effects on long-term health, doctors observe that more and more people have symptoms of COVID that last weeks or even months after they first contracted COVID. Long COVID can happen to anyone who has contracted COVID, even if the initial case was mild. Individuals with widespread symptoms are sometimes referred to as “long distance drivers,” a condition now known as long-term COVID.

With the rise of long COVID cases as a persistent and significant health concern, the Office for Civil Rights and the DOJ’s Civil Rights Division have teamed up to provide new guidance. Long COVID is classified as a disability under Titles II and III of the ADA, Section 504 and Section 1557. Each of the laws listed protects people with disabilities from discrimination. Long-term COVID sufferers now meet the definition of disability, are entitled to workplace accommodation, and are protected from discrimination in the workplace.

According to the Centers for Disease Control and Prevention (CDC), people with long-standing COVID have a range of new or persistent symptoms that occur weeks or months after being infected with the virus that is causing COVID and their symptoms, which can be caused by physical or mental activity .

Examples of common symptoms of long-term COVID include:

• Tiredness or exhaustion;

• Difficulty thinking or concentrating (sometimes called “brain fog”);

• Shortness of breath or difficulty breathing;

• Headache dizziness when standing;

• Heart beating or pounding quickly (known as palpitations);

• Chest pain;

• To cough;

• Joint or muscle pain;

• Depression or anxiety;

• Fever; and

• Loss of taste or smell.

As we learn more about long-term COVID, this list of symptoms can expand.

A person with a disability is defined as a person with a physical or mental impairment that severely restricts one or more of that person’s main activities in life; a person known to have such impairment or a person suspected of having such impairment. Long COVID can also constitute a disability within the meaning of the Wisconsin Fair Employment Act (WFEA), which defines disability as “a disability that makes performance unusually difficult or reduces the ability to work”.

According to ADA instructions, a long-term COVID can limit an important life activity in the following ways:

• A person with prolonged COVID, who has lung damage that causes shortness of breath, fatigue, and related effects, has significant impairment in respiratory function, among other important life activities.

• A person with long-term COVID who has had symptoms of bowel pain, vomiting, and nausea for months, has severe gastrointestinal function impairments, among other important life activities.

• A person with long-term COVID who experiences memory lapses and “brain fog” is severely restricted in brain function, concentration and / or thinking among other important life activities.

If a person with a long diagnosis of COVID is found to be disabled, he / she is protected from discrimination by law. Employers are required to make reasonable accommodation tailored to individual needs and current restrictions.

In addition to the longstanding COVID, employers in the COVID world are also facing an increase in workers struggling with mental health. The increased psychological problems can lead to an employee being qualified as a person with a disability. As a result, employers are receiving more ADA / WFEA disability requests and / or FMLA requests for leave related to an employee’s disability than ever before. Workers requesting vacation or accommodation must go through the interactive process, including an exchange between the worker and employer and usually a consultation with the worker’s health care provider. Possible accommodations that may be considered in connection with mental disabilities include:

• Adjustments to the work plan;

• Break modifications;

• Remote work options;

• Avoidance of known triggers (e.g. noise);

• Privacy;

• Reassignment to a vacant position;

• Restructuring of the workplace.

It is important that reasonable accommodation does not excuse workplace misconduct. In addition, it is possible that placement is an unreasonable hardship for the employer. In making this decision, the EEOC stated that it must be “a significant difficulty or cost” so employers can take into account their own remedies, the cost of housing, the operational impact, safety concerns and job flexibility.

Given the significant changes during the pandemic and its impact on employment, employers need to remain flexible and find ways to update their practices to better cope with the various issues raised above. In anticipation of receiving housing requests, employers should consider reviewing their job descriptions at this time to ensure they accurately reflect the key roles and requirements for the position to avoid having to provide unnecessary housing in the future. In addition, employers should create a uniform methodology for dealing with requests for disabled accommodation in order to avoid conflicting justifications. Ultimately, employers should be willing to participate in the interactive process to determine the best path for further development when employees raise mental health concerns or a long-term COVID illness.

© 2021 Davis | Külthau, sc All rights reservedNational Law Review, Volume XI, Number 231