July 26th, 31st (“ADA”) and other federal laws protecting people with disabilities, such as Section 504 of the Rehabilitation Act of 1973 (“Rehab Act”) and Section 1557 of the Patient Protection and Affordable Care Act a / k / a “Obamacare. ”
Most people infected with the coronavirus recover from COVID-19 disease without lasting effects after several days or weeks of illness. However, some report loss of taste or smell, tiredness, shortness of breath, difficulty breathing, dizziness, headache, difficulty concentrating, depression or anxiety, chronic pain, or other symptoms weeks or even months after they are undetectable in their viral load. According to President Biden, these “long distance drivers” or “long COVID” patients may be eligible for protection under the ADA, which prohibits discrimination against and requires reasonable accommodation for qualified persons with disabilities.
Simultaneously with the president’s announcement, the U.S. Department of Justice, Health, and Human Services issued joint guidelines that long-term COVID-19 illness can be a disability under federal anti-discrimination laws. However, the agencies added that, as with any physical or mental impairment, “an individual assessment is required to determine if a person’s long-term COVID condition or any of their symptoms” is limiting their ability to perform. For example, a long-distance runner with shortness of breath, exhaustion and tiredness can be significantly restricted in respiratory function, while a long-distance runner with intestinal problems can be significantly restricted in gastrointestinal function. A person with long-term COVID who experiences memory lapses and “brain fog” may be significantly impaired in thinking, memory, or concentration. Others, however, may experience only sporadic symptoms that do not increase to such an extent that one or more important life activities are significantly impaired. Hence, the agencies warned, decisions must be made on a case-by-case basis.
While the President’s proclamation and the agencies ‘informal guidelines do not weigh as much as regulations for communications and comments, they are a timely reminder that employers’ obligations are multifaceted in the face of the ongoing (and resurgent) COVID pandemic. Although the Families First Coronavirus Response Act (FFCRA) – which in 2020 required certain employers to grant workers affected by the pandemic short sheltered vacations – has expired on its own terms, employers with 15 or more employees can still have an obligation to provide time off, flexible work arrangements, job changes or restructuring or other arrangements so that employees with long-term COVID-19 can perform the essential functions of their work. Unlike colds, flu, and other transient viruses, which are normally excluded from the ADA’s definition of “disability,” the coronavirus and its sometimes persistent and debilitating effects may require interactive dialogue aimed at finding accommodations that Meet the needs of employees without placing undue burdens on employers.
© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 209
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