Biden Administration says Long COVID Can Be a Disability Under the ADA
By Kevin M. Mosher • Aug 3, 2021
On July 26, 2021, President Biden announced in a press briefing that individuals experiencing long-term effects of COVID-19 may qualify as disabled individuals under the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act of 1973 (“Rehab Act”) and Section 1557 of the Patient Protections and Affordable Care Act (“ACA” or “Obamacare”). “Post-Acute Sequelae of Sars-CoV-2 infection,” or more commonly “long COVID” affects a small percentage of those diagnosed with COVID-19. Those affected suffer symptoms long after their initial diagnosis, such as loss of taste or smell, shortness of breath and difficulty breathing, dizziness, headaches, chronic pain, depression or anxiety, chest pain, fever, heart palpitations, and a broad range of other symptoms. The U.S. Department of Health and Human Services and the U.S. Department of Justice jointly issued guidance on how these federal laws may protect people affected with long COVID. Today we’ll discuss best practices for handling employees affected by long COVID.
How is long COVID a disability?
Under the ADA, a person has a disability if their condition or any of the symptoms they experience constitute a “physical or mental impairment” that “substantially limits” one or more “major life activities.” A physical impairment can include conditions affecting one or more body systems, like the neurological, cardiovascular, respiratory, and circulatory systems. Additionally, mental conditions may also be considered disabilities, such as an emotional or mental illness. Because long COVID may result in lung damage, heart damage, kidney damage, neurological damage, damage to the circulatory system, or lingering emotional illness or mental illness, it can be considered a physical or mental impairment under the ADA, Rehab Act, and ACA.
Are all employees with long COVID disabled under the ADA?
No. Like any other medical condition, employees must show that their long COVID substantially limits one or more major life activities.
What exactly is a major life activity?
The term isn’t overly clear, is it? Major life activities include a lot of different things: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, interacting with others, and working. Major life activities can also involve the operation of a major bodily function—think the immune system, neurological system, circulatory system, the operation of an organ, etc.
But, what does it mean for a major life activity to be “substantially limited”?
Another great question (if I do say so myself). Again, this term isn’t too clear. A major life activity can be substantially limited even if the limitations aren’t severe, permanent, or long-term. This isn’t a very intensive inquiry. For example, a person with long COVID who has lung damage resulting in shortness of breath, fatigue, and related effects is substantially limited in respiratory function, and a person with memory lapses and brain fog from long COVID may be substantially limited in brain function, concentrating, and/or thinking.
What should we do if an employee is considered disabled by long COVID?
You should treat them the same way you’d treat any other disabled employee, meaning you should engage in the interactive process to ascertain a reasonable accommodation that would permit the employee to perform the essential duties of their job. Examples of reasonable accommodations include a temporary leave of absence, permitting the employee to work remotely, or allowing additional breaks. Just like any other situation involving accommodating a disabled employee, employers are not required to provide accommodation that would cause an undue hardship.
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