On July 26, 2021, the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) released joint guidance for employers and employees regarding the long-term health effects of COVID-19 as it applies to federal disability law. In addition, the guidance provides clarification about which manifestations of COVID-19 may allow an employee to claim the protections under the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 (Rehab Act).
According to both agencies, patients experiencing “long COVID” may be covered under the ADA or Rehab Act based on an actual disability arising from their exposure to the virus. Long COVID cases have been observed in people whose symptoms persist beyond their infection period, ranging from lingering fatigue to severe organ damage. An “actual disability” under the law must substantially limit one or more of the “major life activities” of a person, which might include walking, standing, lifting, speaking, breathing, concentrating, and working (to name several activities which are often altered for individuals with COVID-19 or its lasting effects.) Because of the extraordinary impact that the virus has had on different people, based on pre-existing medical conditions, vaccination status, fitness, life habits, and other factors, an individual assessment is always necessary to determine whether someone qualifies for coverage under the ADA or Rehab Act.
If an individual does qualify as a person with a disability under the ADA or Rehab Act, they are entitled to full and equal protection when interacting with businesses, governments, and employers. This protection extends to the right to be free from discriminatory employment actions such as unlawful discharge, demotion, or harassment and the affirmative right to reasonable accommodations in the workplace.
As employees begin to report long COVID and request modifications to their work conditions, employers need to consider the costs and benefits of providing requested accommodations in the workplace. Employers would be well-advised to review their equal employment opportunity policies and discuss any concerns with their attorneys to avoid unnecessary litigation or any harmful reputational costs associated with reluctance in following this guidance.
