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Guidance on “Long COVID” as a Disability Under the Americans with Disabilities Act

At the end of July, the U.S. Department of Health and Human Services (HHS) and U.S. Department of Justice (DOJ) issued guidance on how “long COVID” (also known as long-haul COVID or post-COVID) can be a disability under the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Patient Protection and Affordable Care Act (PPACA). These federal laws protect people from disability discrimination.

 

What is long-haul COVID?

Long-haul COVID is associated with new or ongoing symptoms which persist long after the actual virus has cleared their system. This includes fatigue, shortness of breath, cough, joint pain, chest pain, impaired memory or concentration, muscle pain, headache, fast or pounding heartbeat, loss of smell or taste, depression or anxiety, fever, or dizziness. According to the Centers for Disease Control and Prevention (CDC), some severely ill people with COVID-19 experience multi-organ effects on their lungs, heart, or brain. They may also develop autoimmune conditions where their immune system attacks healthy cells, causing inflammation or tissue damage. While rare, some people, mostly children, experience multisystem inflammatory syndrome (MIS) during or immediately following a COVID-19 infection.

Can long-haul COVID be disabling?

There is much left to understand about long-haul COVID, and research is ongoing. Still, the HHS and DOJ have clarified in this guidance that long-haul COVID can rise to the level of "disability" under the ADA and similar laws if it substantially limits one or more major life activities. These terms have special legal meanings. Like any other impairment, an individualized assessment of functioning is required. The Department's guidance offers examples of how long-haul COVID can substantially limit a major life activity, including:

  • 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.

Key Takeaway

Without specifically commenting on employment discrimination, the Department's guidance confirms that people with long-haul COVID can meet the legal standard of disability to entitle them to protection from disability discrimination. This does not expand protections under disability nondiscrimination laws which are not limited to a specific set of conditions or diagnoses. Rather, the standard remains rooted in an individualized analysis of whether a major life activity is substantially limited. For employers, the guidance is a reminder to treat employees with long-haul COVID as any other potentially disabling condition. Reasonable accommodations may include leave, a flexible work schedule, or adjustments to non-essential job duties, but all dependent on whether the accommodation causes undue hardship.

Additional and regularly updated COVID-19 guidance for employers is available on the U.S. Equal Employment Opportunity Commission’s COVID-19 online resource

For more information on how to ensure your organization remains compliant, visit OneDigital's Compliance Confidence page.

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