What is long COVID?
Long COVID refers to persistent symptoms of COVID, even after someone has had one or more negative COVID tests after recovery. The Centers for Disease Control and Prevention defines anyone with long COVID as having symptoms that last weeks or months after they were infected with COVID-19.
Long COVID may have the following symptoms:
- Difficulty thinking or concentrating.
- Difficulty breathing or shortness of breath.
- Heart palpitations.
- Chest pain.
- Depression or anxiety.
- Loss of smell or taste.
Some more serious long COVID cases might result in damage to the liver, kidneys, skin, and the brain.
Does the ADA cover long COVID?
The Americans with Disabilities Act prevents employers and others from discriminating against individuals with disabilities. It has very specific definitions of what a disability includes, and lawmakers and the courts are grappling with how to treat long COVID under the ADA. Currently, federal guidance indicates that long COVID can be a disability, but requires a case-by-case evaluation.
What rights does the ADA provide to people with disabling long COVID?
If an employee's long COVID is considered a disability under the ADA, then they may qualify for the rights and protections under the ADA as a person with a disability. At the core of the ADA is the premise that any individual with a disability is entitled to equal treatment, including reasonable accommodations, within an employment setting.
Are there instances when long COVID is not a disability?
While long COVID may be considered a disability, in many instances, it may not qualify under the ADA.
For the ADA, a disability must affect one or more major life activities. This can range from activities like walking to thinking through complex problems. Since the effects vary so greatly from person to person, whether long COVID is a disability requires an examination on a case-by-case basis. If an employee's long COVID does not affect major life activities, it may not be considered a disability.
How can employers accommodate employees with long COVID?
Employers may be required to provide reasonable accommodations to employees with long COVID. Reasonable accommodations are changes in the workplace, or the work, that help employees with disabilities to continue working. Examples of potential accommodations for those with long COVID may include:
- Remote work.
- Additional breaks or break time.
- Changing job duties.
- Time away from work.
- Part-time or modified work schedules.
- Relocating a workstation away from others.
- Noise-canceling technology in the office to assist with brain fog and concentration.
Accommodations do not have to be a permanent part of an employee's job. If an employee's long COVID clears up or comes and goes, employers can adjust the employee's accommodations as needed.
What information can an employer ask for when an employee requests an accommodation?
Employers face a delicate balancing act when requesting information from an employee about a disability. Employers might want to be careful and not ask for more information than necessary to avoid invading the employee's privacy.
The following information might be helpful for employers to request when an employee asks for a reasonable accommodation due to long COVID:
- Limited medical documentation to confirm a long COVID diagnosis, but only if it is not obvious that the employee has a disability or needs accommodation.
- Details about what accommodations may be helpful.
Remember, employers may not want all of an employee's medical records. In most cases, a note from a doctor that an employee has long COVID or has lingering effects of COVID-19 may be enough to support their request.
How can employers justify denying requests for accommodations?
An employer may deny a request for an accommodation when the employee is not considered disabled, or the accommodation requested is unreasonable or creates too large of a burden on the employer. Employers may want to ask a lawyer to review any requests and their responses, as incorrectly rejecting a reasonable accommodation request may result in a costly disability discrimination claim.
Common reasons employers deny requests for accommodation include:
- Determining the employee does not qualify under the ADA.
- No accommodation is possible.
- The change creates a large cost increase.
- The requested accommodation fundamentally alters the position or work performed.
After a denial based on a determination that an employee is not disabled, employees may submit additional medical information to support their disability claim. If a requested accommodation is unreasonable or too burdensome, employers may engage the employee to determine if an alternative reasonable accommodation may work. Employers are not required to agree to any and every reasonable accommodation, but are required to discuss options and explore what may or may not work. Often, employees with a disability know what can help, but may not be aware of other constraints their employer may face. An open discussion may lead to an accommodation that works, or help an employee understand why they cannot be accommodated in a particular way.
What resources are available to employers of people who have long COVID?
There are several resources available for both employees and employers to address long COVID and its interaction with the ADA and other anti-discrimination laws.
- The Office for Civil Rights of the Department of Health and Human Services has a website with information specific to civil rights and COVID, and it includes an array of additional helpful resources and information.
- The Civil Rights Division of the U.S. Department of Justice also provides COVID-19 and ADA resources.
- Symptoms of long COVID can be found on the CDC's website.
- The U.S. Equal Employment Opportunity Commission provides guidance and information about COVID-19 and anti-discrimination laws.
If you have questions about the ADA, long COVID, and your workforce, reach out to a Rocket Lawyer network attorney for affordable legal advice.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.