Post-acute COVID May Put Employers in it for Long Haul

Patients who experience lingering symptoms of COVID-19 may qualify for special protections under the Americans with Disabilities Act (ADA), according to federal guidance published in July. Commonly referred to as “COVID long-haulers,” some individuals may qualify for the rights and resources due under related disability laws. Employers are currently excluded from these new ADA policies, but they should still be aware of recent changes.

While many patients recover quickly from the virus, post-acute COVID-19 patients can experience fatigue, loss of sense of smell, fever, headache, depression or anxiety months after the initial infection. This phenomenon is often referred to as Long COVID.

Following an announcement from the White House, the Department of Health and Human Services and the U.S. Department of Justice released information establishing prolonged COVID-19 symptoms as qualifying conditions for extended protections in certain cases. As with any other disability considered under the ADA, employees must experience significant physical or mental impairment that substantially limits at least one or more major life activities.

Major life activities refer to general everyday tasks, such as standing, sitting, breathing or sleeping. The term “substantially limits” is interpreted broadly under the ADA; it is not required that the impairment significantly restrict long-haulers from performing a major life activity but, rather, impacts daily function.

Given the variety of symptoms post-acute COVID patients experience, an individualized assessment is required to determine if resulting issues qualify as a disability.

The new guidelines specifically note that they are not applicable in the context of employment. While the Equal Employment Opportunity Commission (EEOC) controls and enforces the ADA’s employment sections, it has not yet recognized Long COVID as a disability nor defined related workplace accommodations. Related rights and protections are likely in the near future.

Even before EEOC stipulations regulate related policies, employers should be aware that COVID-19 does not always end for ill employees at the end of quarantine or with a negative test result. Reasonable accommodations like job restructuring, remote work, flexible scheduling or other modifications may be necessary. Engaging in an active dialogue with the affected employee to come up with a solution is in both the employee’s and the company’s best interest.

This article first appeared in The Journal Record on September 20, 2021, and is reproduced with permission from the publisher.


Associated People:

Jaycee Simon (Booth)

Practice Area:

Labor & Employment