Recent guidance released by the Department of Health and Human Services and the Justice Departments’ Civil Rights Division (“Joint Guidance”) confirms that people who continue to experience COVID symptoms months after first being infected may qualify as disabled under the Americans with Disabilities Act (ADA).
Anyone who has had COVID-19, even where the initial illness was mild, can experience symptoms that last months or reoccur at a later time. This condition is known as “long COVID” and people with this condition are sometimes called “long-haulers”.
The Joint Guidance explains that long COVID can be a disability under both the ADA and the Patient Protection and Affordable Care Act, both of which protect people with disabilities from discrimination. It also notes that long COVID can substantially limit one or more major life activities, including caring for oneself, performing manual tasks, lifting and other activities.
Some examples of common symptoms of long COVID may include:
- Tiredness or fatigue;
- Difficulty thinking or concentrating (sometimes called “brain fog”);
- Shortness of breath;
- Dizziness;
- Heart palpitations;
- Chest pain;
- Joint or muscle pain;
- Depression or anxiety; and
- Loss of taste or smell.
According to the Centers for Disease Control and Prevention (CDC), the symptoms for long COVID can worsen due to physical or mental activity.
NOTE: This latest jointly released guidance makes clear that long COVID will not always qualify as a disability in noting that “an individualized assessment is necessary to determine whether a person’s long COVID condition, or any of its symptoms, substantially limits a major life activity.”
Take Away
Employers will sometimes need to make changes to the way they operate to accommodate a person’s long COVID-related limitations. The Department of Labor published guidance earlier this summer clarifying that employers must try to reasonably accommodate workers suffering from long COVID through the use of modified equipment or work schedules. If you have questions related to long COVID situations, please contact the Contribution Health Compliance Team.
Please be aware that the determination of the requirements and the application of specific laws and regulations to this topic may differ due to a number of variables. Nothing in this newsletter should be construed as tax or legal advice.