By Joseph S. Brown, Esq.
Long Covid is a condition where people experience long-term Covid-19 symptoms long after clearing the actual virus from their system. According to recent guidance issued by the Department of Health and Human Services (HHS) and the Department of Justice (DOJ), long Covid can classify as a disability under certain federal laws “if the person’s condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits’ one or more major life activities.” This article summarizes the guidance and what it means for employers.
What is long Covid?
Most people with COVID-19 get better within weeks, however, some people continue to experience symptoms that can last months after first being infected, or may have new or recurring symptoms at a later time. People with this condition are sometimes called “long-haulers” and this condition is known as “long COVID.”
As explained by the Centers for Disease Control and Prevention (CDC), people with long COVID have a range of new or ongoing symptoms that can last weeks or months after they are infected with the virus that causes COVID-19 and that can worsen with physical or mental activity. The common symptoms of long COVID include, but are not limited to, the following:
- Tiredness or fatigue
- Difficulty thinking or concentrating (sometimes called “brain fog”)
- Shortness of breath or difficulty breathing
- Dizziness on standing
- Fast-beating or pounding heart (known as heart palpitations)
- Chest pain
- Joint or muscle pain
- Depression or anxiety
- Loss of taste or smell
According to the CDC, people also experience damage to multiple organs including the heart, lungs, kidneys, skin, and brain.
Is Long Covid a Disability?
Long Covid is classified as a disability “if the person’s condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits’ one or more major life activities.” As explained by the guidance, “[t]he impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not need to be severe, permanent, or long-term. Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.”
The guidance points out that long COVID does not always qualify as a disability. Rather, an individualized assessment is necessary to determine whether a person’s symptoms substantially limit a major life activity.
What does this mean for employers?
The HHS/DOJ guidance specifically analyzed long COVID in the context of Title II (state and local governments) and Title III (public accommodations) of the American With Disability Act (ADA), Section 504 of the Rehabilitation Act, and Section 1557 of the Patient Protection and Affordable Care Act. The HHS/DOJ guidance makes clear that it did not cover obligations under Title I of the ADA, which applies to private employers. With that said, the legal analysis is largely the same and may be a preview of how agencies such as the U.S. Equal Employment Opportunity Commission (EEOC) may view claims related to long COVID. For example, the U.S. Department of Labor recently issued a blog post on how workers with long COVID may be entitled to accommodations under the ADA.
In sum, employees with long COVID who request an accommodation for their disability must be provided with the same opportunity for accommodations as individuals suffering from other disabilities. Accordingly, employers should be familiar with long COVID as well their responsibilities under various state and federal disability anti-discrimination laws. Employers should have policies and procedures in place for conducting an individualized assessment to determine whether a person’s symptoms substantially limit a major life activity, engaging in the interactive process, and analyzing requests for reasonable accommodations.
We are continually assessing COVID-19-related issues in the employment context. For guidance on these issues, or other labor and employment concerns, please contact any member of the Hurwitz & Fine, P.C.’s Labor & Employment team at 716-849-8900 or visit our website at www.hurwitzfine.com