UPDATE: December 17, 2021

In an unsurprising move, the EEOC updated its COVID-19 technical assistance to provide guidance on when COVID-19 can be considered a “disability” under the ADA, in referring specifically to the DOJ / HHS guidelines discussed in the original blog below. EEOC technical assistance focuses “more broadly on COVID-19” beyond “long COVID” and does so “in the context of Title I of the ADA and Section 501 of the law on rehabilitation, which cover employment ”. However, the EEOC guidelines clearly echo the DOH / HHS guidelines and indicate that a long COVID or persistent symptoms of COVID can be a “handicap” under the law.

In many states, a lengthy COVID could also be considered a disability under state laws. So, employers should be prepared to receive more claims in the future, even when the pandemic ends (finally) – from employees who are suffering from symptoms of COVID as a chronic illness.


What is Long COVID and when is it a handicap?

The EEOC reiterated that determining whether COVID can be considered a “disability” under the law is a factual question, requiring analysis of the extent to which COVID symptoms, its long-term effects, or how which he exacerbated the symptoms of another condition “severely limit major life activity,” as noted in the original blog below. This means that an individual suffering, even intermittently, from certain symptoms related to long COVID can be considered “disabled” by law.

The EEOC provides several examples of these impairments, including: “brain fog” and difficulty remembering or concentrating; substantially limited respiratory function; chest pain; or stomach pain.

It is important to note that the EEOC distinguishes these “mostly limiting” conditions from less severe symptoms, such as “congestion, sore throat, fever, headache and / or gastrointestinal discomfort, which go away. in a few weeks ”, which would not create a“ handicap ”. ” But make no mistake: even these relatively trivial symptoms can be a handicap if they last or are expected to last for a significant period of time (that is to say more than six months).

According to the guidelines, while the long COVID “is not automatically considered a disability,” as with any disability investigation, an employer is obligated to cooperate with an ill 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 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 you can and cannot do

Fortunately, the EEOC did not issue employees with long COVID a ticket for not doing their job.

Not wanting employers to lose sight of the big picture, the EEOC also clarified that taking adverse action against an employee with a disability due to COVID-19 does not automatically mean the action is discriminatory. On the contrary, an employer may have legitimate and non-discriminatory reasons for taking the adverse action. The EEOC highlights the circumstance in which the employee concerned was no longer able to perform his duties due to his disability. Further, the EEOC states that the ADA’s “direct threat” defense could allow an employer to require an employee with COVID-19 or its symptoms to refrain from physically entering the workplace. workplace during the isolation period recommended by the CDC, due to the significant risk of substantial harm to the health of others.

In summary, the EEOC guidance is aligned with the DOJ / HHS guidance we discussed in August. But don’t let the blog’s focus on the long COVID distract from the larger point that any COVID-19 infection, including active infections, can be a “handicap” under Title I of the ADA according to the severity and duration of symptoms. As we said, each employee brings their own set of facts that require individualized analysis. For quick answers to your factual questions about COVID-19, contact Kelley Drye.

ORIGINAL BLOG: August 5, 2021

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 issue is for employers: how to best accommodate employees who suffer from symptoms of COVID months after being infected with the virus – long COVID.

What employers need to know

The guidelines, like our understanding of the lengthy COVID, are frustratingly vague. On the bright side, 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 caregivers. medical. 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.

  • 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.
  • EVALUATE REGULARLY. Because so little is known about lengthy 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 reassess 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.
  • 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 document why you can or cannot. 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.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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