COVID-19 Long-Haulers May Be Entitled to ADA Job Protections

Allen Smith, J.D. By Allen Smith, J.D. August 3, 2021
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​Marking the 31st anniversary of the Americans with Disabilities Act (ADA) on July 26, President Joe Biden said people with long-term effects of COVID-19—often referred to as COVID-19 long-haulers—may be protected by the law. We've gathered articles on the news from SHRM Online and other outlets.

Long-Term Effects

"Many Americans who seemingly recover from the virus still face lingering challenges like breathing problems, brain fog, chronic pain and fatigue," Biden said. "These conditions can sometimes … rise to the level of a disability." The ADA doesn't provide a checklist of covered conditions. Instead, an individual determination must be made about whether someone has a physical or mental impairment that substantially limits a major life activity, such as breathing, thinking, sleeping or working.

(PBS News Hour)

'Substantially Limits' Should Be Interpreted Broadly

In joint Department of Justice (DOJ) and Health and Human Services (HHS) guidance issued July 26, the agencies said "substantially limits" should be interpreted broadly and should not demand extensive analysis. Examples of situations in which a COVID-19 long-hauler might be substantially limited in a major life activity include the following:

  • A person 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 who has symptoms of intestinal pain, vomiting and nausea that have lingered for months is substantially limited in gastrointestinal function.
  • A person who experiences memory lapses and brain fog is substantially limited in brain function, concentrating and thinking.

Nonetheless, long-term effects of COVID-19 don't always qualify as a disability under the ADA, the agencies noted. An individualized assessment is necessary.

(Lexology) and (DOJ and HHS guidance)

Possible Accommodations

Leave is a common accommodation for COVID-19 long-haulers. Employers should review and ensure that their leave and short-term disability plans address long haulers' needs. Other accommodations, such as part-time work or job restructuring, may be a way to re-engage long-haulers as they return to work. An employer does not have to remove essential job functions, lower production standards or provide any accommodation that creates an undue hardship on the business. An employer also doesn't have to provide an employee's preferred accommodation so long as the employer grants an effective accommodation.

(Aon) and (Job Accommodation Network)

Comply with FMLA as Well as ADA

People with severe COVID-19 symptoms that last for months may be covered by the Family and Medical Leave Act (FMLA) in addition to the ADA, while those who recover quickly may not be covered by the ADA but might be protected by the FMLA. Employers should understand the scope of the laws' coverages and educate managers about the laws' possible applications.

(SHRM Online)

Better Treatment

One in 3 COVID-19 cases is projected to result in long-term effects of COVID-19. A San Francisco Bay area virologist reportedly has discovered the root cause of long-hauler symptoms such as fatigue and confusion, and this discovery is leading to better treatment. Treatment can lead to improvement in two to four weeks, according to the virologist.

(ABC7 Bay Area)

[Want to learn more? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]

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