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Guidance on Intersection Between ADA Workplace Accommodation and COVID Long-Haulers

Employees and employers now find themselves well into year two of a global pandemic. Unfortunately, some people who contract COVID-19 do not fully recover. Known as "COVID long-haulers," these individuals suffer from a range of conditions that persist well beyond when they first contracted the virus. The impacts of "long-COVID" have left some individuals disabled, by definition, under the Americans with Disabilities Act (ADA) and similar state and local laws. However, not every condition will qualify. Below, we consider steps employers can take to ensure they're providing appropriate accommodations and mitigating potential litigation.

ADA-COVID IntersectionIt's important to know what long-COVID entails. In a recent Guidance, the Centers for Disease Control (CDC) identified the most common health problems that may occur after infection. According to the CDC, those with long-COVID may experience some, many, or all, of the following:

  • Difficulty breathing or shortness of breath
  • Tiredness or fatigue
  • Symptoms that get worse after physical or mental activities
  • Difficulty thinking or concentrating (sometimes referred to as "brain fog")
  • Cough
  • Chest or stomach pain
  • Headache
  • Fast-beating or pounding heart (also known as heart palpitations)
  • Joint or muscle pain
  • Pins-and-needles feeling
  • Diarrhea
  • Sleep problems
  • Fever
  • Dizziness on standing (lightheadedness)
  • Rash
  • Mood changes
  • Changes in smell or taste
  • Changes in menstrual cycles

Many of these conditions—on their own, in combination with one another, or added to other health conditions—may be considered physical or mental impairments that substantially limit one or more major life activities. In other words, COVID long-haulers may qualify as disabled under the ADA and similar state and local laws. The same can be said for the Family & Medical Leave Act (FMLA) as well as state and local sick leave laws.

A recently issued, joint Guidance from the Department of Justice (DOJ) and Department of Health and Human Services (DHHS), encourages businesses to interpret the term 'substantially limited' broadly "and not demand extensive analysis." Even if the condition or conditions come and go, they may still be disabilities "when the impairment is active."

The DOJ/DHHS Guidance also provides non-exhaustive examples of long-COVID impairments. These include a person with long-COVID who has lung damage that causes shortness of breath, fatigue, and related effects who is substantially limited in respiratory function, or someone with intestinal pain, vomiting, and nausea that has lingered for months, who is substantially limited in gastrointestinal function.

Of course, not every condition—COVID-related or otherwise—will qualify as a disability under the ADA. Like any other medical condition, an individualized assessment will be necessary. Make sure you have and follow a written accommodation process. Engage the employee in the interactive process to identify possible accommodations that address the particular medical conditions that the employee presents. Does the individual need a reduced work schedule? Are additional break periods warranted? Does the employee who typically works on their feet need a stool or other opportunities to sit? What type of leave benefits may be available and necessary? Remember, the accommodation must be reasonable—a determination that is up to the employer—with the goal of allowing the employee to perform their essential job functions.

And, as is the case with any employment action: document, document, document. Ensure you have complied with the accommodation process under the ADA and considered a possible leave under the FMLA.