The Office for Civil Rights of the Department of Health and Human Services (“HHS”) and the Civil Rights Division of the Department of Justice (“DOJ”) have collaborated to develop guidance as to whether individuals suffering from a condition known as “long COVID” are considered to have a disability entitling them to protection under Titles II and III of the Americans with Disabilities Act (“ADA”), which apply to governments and public accommodations, Section 504 of the Rehabilitation Act, and Section 1557 of the Patient Protection and Affordable Care Act. While this guidance is not squarely applicable under Title I of the ADA, which governs private employers, the analysis is instructive.
According to the CDC, some individuals who were infected with the COVID-19 virus, even if their cases were asymptomatic, report experiencing a wide range of symptoms weeks or months after the initial infection. These symptoms include tiredness or fatigue, “brain fog,” cough, chest or stomach pain, headache, pins-and-needles feeling, changes in smell or taste, and sleep problems, among others. The illness is referred to as “long COVID,” “long-haul COVID,” or “post-acute COVID-19.”
To analyze whether long COVID is considered a disability, the departments looked to the definition of disability found in 42 U.S.C. § 12102: “a physical or mental impairment that substantially limits one or more major life activities of such individual, a record of such an impairment, or being regarded as having such an impairment.”
Considering the expansive definitions, HHS and the DOJ determined that long COVID can be a physical or mental impairment under the ADA, and that in some instances, can substantially limit one or more major life activities. However, the guidance clarified that a person suffering from long COVID may not always exhibit symptoms that substantially limit a major life activity. For that reason, all assessments of disability must be conducted on a case-by-case basis.
Employees suffering from long COVID have begun filing lawsuits against employers alleging failure to accommodate and disability discrimination under various state and federal laws. In one such lawsuit, an employee claims that after she contracted COVID-19, she suffered lingering breathing issues and was determined to be a COVID long hauler. Probert v. Mubea, Inc., No. 2:21-cv-11660 (E.D. Mich. July 21, 2021). To support her claim of disability discrimination in violation of the Michigan Persons with Disabilities Civil Rights Act, the employee alleges her breathing issues “affected the major life function of breathing” rendering her disabled, that the disability did not impede her ability to perform her job, and that her employer terminated her, in part, because of the disability. Id.
Employers should be prepared to field employee accommodations requests related to long COVID and should follow their established accommodation request procedure. If an employee requests an accommodation, such as additional break time, part-time or modified work schedule, or reassignment, employers can ask questions or request medical documentation to determine whether the employee’s long COVID is, in fact, a disability and whether any accommodation is warranted.