Comply with ADA, FMLA When Worker Is a 'COVID-19 Long Hauler'

​Individuals with severe COVID-19 symptoms that last for months—"COVID-19 long haulers"—may be covered by the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA), 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' coverage and educate managers about the laws' possible application.

ADA Coverage

Someone with COVID-19 probably isn't covered by the ADA if the condition lasts for two weeks or less, according to Jesse Dill, an attorney with Ogletree Deakins in Milwaukee.

A disability is defined by the ADA to include:

• A physical or mental impairment that substantially limits one or more major life activities of an individual.
• A record of such an impairment.
• Being regarded as having such an impairment.

"Typically, the 'substantially limits' language within this definition has been interpreted to exclude conditions of a short duration and from which an individual will fully recover," Dill said.

Nonetheless, David Fram, director of ADA services with the National Employment Law Institute, headquartered in Golden, Colo., said that if someone has COVID-19 for two weeks and there are no lingering effects, he or she still could be regarded as having a disability. While an employer doesn't have to reasonably accommodate someone it merely regards as having a disability, it must refrain from discriminating against that person, Fram noted.

An employer must not discriminate against and must reasonably accommodate someone who has an impairment that actually substantially limits a major life activity, which could include a COVID-19 long hauler, Fram said. Enduring effects of COVID-19 might include chronic fatigue, shortness of breath and brain fog.

Major life activities under the ADA include sleeping, breathing, concentrating, thinking and working, said Lori Armstrong Halber, an attorney with Fox Rothschild in Warrington, Pa. An employer may have to provide a leave of absence under the ADA beyond time off under the FMLA or a modified work schedule as a form of reasonable accommodation unless the employer can show that doing so would constitute an undue hardship. It's difficult for an employer to prove an undue hardship, she said.

"Unfortunately, there is no bright-line test for determining whether someone is disabled for purposes of the act," said Leigh Jeter, an attorney with Michael Best in Chicago. "I encourage employers to err on the side of assuming that the employee may be covered under the ADA and then consider those resulting legal obligations." Removal of nonessential functions of the position might be a reasonable accommodation, she noted.

So might telecommuting, depending on the circumstances, said Lindsay Burke, an attorney with Covington in Washington, D.C.

The ADA applies only to employers with 15 or more employees; to be protected, the person must be a qualified individual with a disability with or without a reasonable accommodation.

FMLA Coverage

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

The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

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

Alternatively, a serious health condition may be an impairment of 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, Jeter said. "In that situation, the employer may be facing an employee who is eligible for intermittent FMLA leave," she said.

The employee must be eligible for FMLA leave and have FMLA leave available, Shea added. The FMLA applies only to employers with 50 or more employees within a 75-mile radius of the worksite. The employee must have worked for the employer for 12 months and at least 1,250 hours in the 12-month period preceding the beginning of the leave.

An employee with long-term symptoms who is FMLA-eligible could take up to 12 weeks of leave in a 12-month period. "The leave is unpaid, but the employee may be able to use accrued vacation pay or paid time off as compensation to cover all or part of the time," Shea said.

It's also possible that an employee with COVID-19 lingering effects may be eligible for short-term disability benefits. "Depending on the employer's short-term disability policy, the employee may be entitled to more than 12 weeks of job-protected leave," she said. "Many employers, as a matter of policy and practice, provide job-protected leave for the entire duration of the short-term disability period, which is often as much as six months."

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Consistent Application

For consistent application of the ADA and FMLA to employees, Shea recommended:

• Following existing reasonable accommodation and FMLA policies with employees who are COVID-19 long haulers.
• Giving the employee the benefit of the doubt if he or she can present a doctor's note or other appropriate documentation of experiencing the long-term effects of COVID-19.
• Engaging in the ADA interactive process with the individual when determining whether reasonable accommodation is possible.
• Telling employees who are FMLA-eligible that their conditions might qualify for FMLA leave.
• Providing some type of non-FMLA leave, such as personal leave, to employees who have serious health conditions but are not eligible for FMLA leave because of length of service or other factors.

Also consider whether a condition is a disability under federal, state or local law, Jeter added.