COVID CONSIDERATIONS: Long COVID is now a handicap | Kelley Drye & Warren LLP


It seems that at every turn, COVID-19 is preventing employers from catching their breath. We discussed on this blog how employers should deal with employees working from home, reopen and stay compliant with the law and CDC guidelines, mask and vaccine mandates, and what to do when employee tested positive for the virus. Now, another problem for employers is how to best accommodate employees who suffer from COVID symptoms months after being infected with the virus – long COVID.

On July 26, 2021, the Office of Civil Rights (HHS) of the US Department of Health and Human Services and the Division of Civil Rights (DOJ) of the US Department of Justice jointly issued guidance on whether the Long-lasting COVID can be considered a disability subject to non-discrimination requirements. of the ADA, section 504 of the Rehabilitation Act and section 1557 of the Affordable Care Act. They concluded that this is the case in some cases.

A brief introduction to the long COVID

The immediate symptoms of a COVID-19 infection are now as infamous as they are many: fever, nausea, shortness of breath, fatigue, loss of taste or smell, etc. called “long COVID” and “long haul” still sick months after their first infections. According to the CDC, these symptoms “are a wide range of new, recurring, or ongoing health problems that people may experience. four weeks or more after being infected for the first time. As with immediate symptoms, the extent and severity of long-term COVID symptoms vary widely from person to person; sometimes mild and intermittent, other times severe and pervasive. The CDC notes that while this is not uncommon in patients infected with the virus in general, “from a scientific standpoint, it’s a puzzle.”

Until this conundrum is resolved, it is up to employers to determine how to responsibly welcome long-haulers into their ranks.

When Is Long COVID a Disability?

According to the guidelines, although the long COVID “is not automatically considered a disability,” as with any disability investigation, an employer is obligated to cooperate with a sick employee to perform an “individualized assessment” and determine if the long This employee’s COVID symptoms constitute physical or mental impairments that substantially limit one or more major life activities.

The guidelines make it clear that “the term ‘limits substantially’ is interpreted broadly under these statutes and should not require further analysis. Nonetheless, the HHS and DOJ have provided three possible (but not exhaustive) examples of where long-lasting COVID would be considered a disability:

  1. an employee with significantly reduced respiratory function due to lung damage
  2. an employee with significantly limited gastrointestinal function (frequent bowel pain, vomiting and nausea); and

an employee with substantially limited cognitive function or “brain fog”.

The guidelines stress that symptoms do not have to be physical – a long COVID can dramatically affect an individual’s psychological or emotional well-being to the point that accommodation may be necessary.

What employers need to know

The guidelines, like our understanding of the lengthy COVID, are frustratingly vague. The positive side is that any employer who is already sensitive to the accommodation needs of their employees is already well placed to take into account the needs of employees with long symptoms of COVID. Employers shouldn’t fall prey to tunnel vision and determine if an employee’s symptoms are due to COVID per se.

Rather, they need to stay focused on the fundamental question: Are these symptoms significantly limiting my employee’s ability to perform their job?

As with any medical condition, the substance of a “cooperative dialogue” between employer and employee can vary widely depending on the employee’s duties, symptoms, and the advice they receive from their medical providers. Of course, any employer can make a reasonable request that an employee provide a doctor’s note in order to justify a request for accommodation under the ADA, but the mere fact of making such an employee’s request does not exempt an employee. employer to make reasonable efforts to engage with this employee to determine what accommodations, if any, are available.

Planning for the future

Employers should also anticipate ongoing and evolving accommodation discussions, particularly if the employee is in fact a “long haul” COVID. The long-term effects of a COVID infection are still not fully understood, and the best prepared employer is one who is willing to adapt to an employee’s needs not only reasonably, but also quickly.

It can mean different things.

  1. DOCUMENT. It will be crucial for anyone in a human resources function to (safely) memorize the substance of every discussion regarding an employee’s accommodation requests. At the same time, be sure to put into receivership and secure all medical records and ensure confidentiality.
  2. EVALUATE REGULARLY. Because so little is known about long-term COVIDs and because symptoms can suddenly subside or worsen over time, employers should require affected employees to agree to “check-in” meetings. Predetermined. At a specific date in the future, the employer and employee might meet again to re-evaluate any additional (or less) accommodations the employee might need. This is a sensitive issue, however, and it is best done in conjunction with a qualified legal advisor.
  3. BE FLEXIBLE. If an employee needs accommodation for an extended period of COVID, be flexible in responding to their requests. Determine if you can make the accommodations and explain why you can or not. Finally, before refusing an accommodation, make sure that there is now a reasonable way to grant the accommodation.

Whether the issue is low-key or you’re looking to craft a general policy that may affect every employee, it’s always wise to consult with an outside lawyer. This will ensure that you are aware of locally applicable laws and regulations regarding accommodations for people with disabilities, especially COVID-related accommodations.

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