Long COVID-19 Poses Compliance Risks for Employers

​As the COVID-19 pandemic persists, the probability of employees developing long COVID-19 increases. Employers may face some compliance risks when that happens, particularly regarding the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Medical certification and documentation require careful thought, as there aren't standard procedures for diagnosing the condition.

Symptoms, Treatments and Prevention

The most common symptoms of long COVID are difficulty concentrating, fatigue, shortness of breath, chest pain, rapid heart rate, loss of sense of smell and taste, anxiety, and depression, said Dr. Jeff Levin-Scherz, managing director and population health leader with WTW in Belmont, Mass.

The severity of each symptom ranges greatly, he noted. Many people see substantial resolution of their symptoms over several months, but for some, the symptoms persist longer.

Much remains unknown about long COVID. "Since the first case of COVID-19 in the U.S. was only three years ago, we don't know the longer-term implications," Levin-Scherz said. "It's possible that long COVID has multiple different causes and could be a constellation of different diseases."

However, Levin-Scherz is hopeful there will be better treatments in future years.

For now, the best way to avoid getting long COVID is to not get sick in the first place, he said, adding that vaccines remain effective at reducing the risk of infection.

In addition, the medication Paxlovid has been shown to substantially reduce the risk of long COVID in those who take it within the first five days of illness, he added.

"It behooves employers to limit COVID infections as much as possible, no matter how seemingly mild or unnoticeable it may be at the time of infection," said New-York-City based Elsie Tai, head of the Occupational Health & Safety Services practice at NFP, a global benefits consultant and property and casualty insurance broker. "While many of the most visibly devastating effects of COVID may have gone, it is still present and impacting the workforce."

Coordination of FMLA and ADA Requirements

Long COVID might qualify as a serious health condition that entitles an employee to take FMLA leave, including intermittent leave, but not necessarily, said Geri Haight, an attorney with Mintz in Boston. Under the FMLA, a serious health condition can mean an illness that typically involves inpatient care or continuing treatment by a health care provider.

The employee may be entitled to accommodations under the ADA, as well.

The federal government recognizes that long COVID may be an ADA-qualified disability. For example, an employer may be required to provide a leave of absence or other accommodation to an employee under the ADA once benefits under the FMLA are exhausted.

After discussing possible accommodations with the employee, the employer might identify a reasonable accommodation for a worker with long COVID. Accommodations might include:

• A modified work schedule, such as part-time work.
• Removal of nonessential functions of the position.
• Remote work.
• Leave.

Employers are obligated to grant an accommodation request only if it does not impose an undue burden on them.

Medical Evaluation and Certification

When employees initially request FMLA leave, an employer can require them to submit a medical certification establishing the need for leave and estimating the duration and frequency of the leave. "Because long COVID symptoms may not require inpatient or ongoing care by a medical professional, depending on the symptoms experienced by the employee, long COVID may not satisfy the FMLA's serious health condition requirements," Haight said.

Long COVID symptoms are largely self-reported, making them difficult to confirm through a medical evaluation, Haight added.

While medical certification under the FMLA and medical documentation under the ADA "may be available to employers, there is currently no test to confirm the presence of long COVID," she said. "Nor is there a standard process for diagnosing long COVID or symptoms associated with it."

Also, a doctor's note might not provide the definitive information an employer seeks, Haight noted.

Nonetheless, even someone with COVID-19 symptoms that don't last a long time may be covered by the FMLA, said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C.

One definition of a serious health condition that qualifies for FMLA leave is an impairment lasting more than three calendar days plus two or more visits to a health care provider. The appointments can happen up to 30 days after the onset of the condition.

Alternatively, a serious health condition can be defined as an impairment lasting more than three calendar days plus one visit to a health care provider and a continuing course of treatment.

An employer should also consider whether the condition qualifies as a chronic condition that occasionally incapacitates the employee and requires treatment by a health care provider at least twice a year.

If an employee with long COVID is covered by the FMLA, an employer cannot request additional medical certifications each time the employee takes time off due to symptoms, Haight said.

However, she noted that under the ADA, an employer can request medical documentation that describes:

• The nature, severity and duration of the impairment.
• The activity that the impairment limits.
• The extent to which the impairment limits the employee's ability to perform the activity.
• Why the requested accommodation is needed.

That said, Haight noted that the Equal Employment Opportunity Commission has clarified that long COVID can qualify as a disability, and therefore employers need to reasonably accommodate employees with the condition or risk potential claims of disability discrimination.

"Employers need to balance challenges with managing excessive leave or remote-work requests by employees reporting long COVID symptoms with the risk of employment discrimination litigation," she said.