ADA prone to defend COVID long-haulers, Biden says

On July 26, 2021, President Biden announced that individuals with long-term COVID (called long-distance COVID drivers) could be protected under several federal civil rights laws, including the Americans With Disabilities Act (ADA).

While some people make full recovery from COVID, others experience debilitating symptoms that last long after they first develop COVID-19 (Long COVID), including extreme fatigue, shortness of breath, chest tightness, and brain fog.

The U.S. Department of Justice and the U.S. Department of Health have issued joint guidance on this issue, stating that COVID can be a disability under Titles II (state and local government) and III (public housing) of the Americans with Disabilities Act. Section 504 of the Rehabilitation Act of 1973 (Section 504) and Section 1557 of the Patient Protection and Affordable Care Act (Section 1557) if they materially restrict one or more important life activities. The guidelines noted that the term “materially limited” under these laws should be interpreted broadly and should not require extensive analysis, and included examples of when prolonged COVID can significantly limit an important life activity:

• 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 significant 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.

The guidelines made it clear that long-term COVID illness is not always a disability and that an individual assessment is required to determine whether a person’s long-term COVID illness or any of their symptoms are materially limiting an important life activity. Notwithstanding this clarification, if an employee suffering from prolonged COVID is struggling and / or is requesting placement, employers should play it safe and engage in the interactive process to see if they can provide reasonable accommodation for the employee, without causing undue hardship.