In the early days of the COVID pandemic, many employment lawyers assumed that COVID-19 would not be considered a disability under the Americans with Disabilities Act. After all, the typical duration of the virus was thought to be “transitory and minor” — just like the “regular flu.” Transitory and minor conditions are not disabilities covered by the ADA.
But, as the pandemic continues and our knowledge of the virus grows, the Biden Administration is taking steps to ensure that ongoing symptoms from COVID are considered a disability. In particular, the focus is on “Long COVID” or “Long Haulers.” People with “Long COVID” have a range of new or ongoing symptoms that can last for weeks or months after they are infected with the virus.
On July 6, 2021, the U.S. Department of Labor published a blog post stating that workers with Long COVID might be entitled to workplace accommodations under the ADA. Here’s a link to that blog: DOL Long COVID Blog. This week, the U.S. Department of Health and Human Services and the U.S. Department of Justice issued a joint guidance finding that Long COVID could be a disability under the Americans with Disabilities Act. Here is a link to that guidance: OCR’s “Long COVID” Guidance
The Department of Justice joint guidance is particularly important because it recognizes that even if an impairment from COVID “comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.” That guidance also gives several examples of substantial limitations on major life activities:
- A person with long COVID who has lung damage that causes shortness of
breath, fatigue, and related effects is substantially limited in respiratory function,
among other major life activities.
- A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal
function, among other major life activities.
- A person with long COVID who experiences memory lapses and “brain fog” is
substantially limited in brain function, concentrating, and/or thinking.
But, the guidance also recognizes that COVID is not always a disability. Instead, an “individualized assessment” of each affected employee is necessary to determine if symptoms from COVID amount to a disability. As a result employers should be cautious when disciplining or terminating an employee with ongoing health conditions resulting from COVID-19.