Long COVID can be a handicap, says Biden | McNees Wallace & Nurick LLC

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The Biden administration announced earlier this summer that Long COVID can be considered a disability under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act and several other federal laws providing protection to people with disabilities. . The Centers for Disease Control and Prevention has defined “Long COVID” as new or ongoing symptoms of COVID-19 that can last several weeks or months after an individual has been infected with the virus. Long-lasting symptoms of COVID can include fatigue, “brain fog”, heart palpitations, joint or muscle pain, dizziness, and depression or anxiety.

The Department of Health and Human Services (“HHS”) and the Department of Justice (“DOJ”) subsequently issued guidelines explaining how Long COVID can be considered a disability under the ADA. A physical or mental impairment is a “handicap” if it considerably limits one or more major activities in life, such as eating, breathing, working, etc. no need to be permanent or serious in nature. The guide also provides several examples of how Long COVID can significantly limit a major life activity, including the following:

  • A person who has lung damage that causes shortness of breath, fatigue, and related effects is significantly limited in respiratory function, among other major activities of life.
  • A person who has symptoms of stomach pain, vomiting, and nausea that persist for months is severely limited in their gastrointestinal function.
  • A person who experiences blackouts and brain fog is significantly limited in brain function, concentration, and thinking.

The guidelines go on to say that Long COVID may not always be a disability and that an individual medical assessment will be needed to determine if this creates a substantial limitation of a major life activity. The EEOC recently issued a statement saying it agrees with HHS and DOJ guidance regarding Long COVID and will update its technical support on this issue in the coming weeks.

In the meantime, employers should be aware that if a COVID “long haul” is found to be suffering from a disability, he may be entitled to reasonable accommodation. Examples of reasonable accommodation could include leave, remote work, job restructuring or part-time work. Employers are under no obligation to alter or eliminate essential job functions or provide any accommodation that causes undue hardship to the business.

In addition to ADA, Long COVID may also be covered under the Family and Medical Leave Act (“FMLA”) as it would be considered a serious health problem. Employers must understand the protections provided to employees by the ADA and FMLA and train managers and supervisors on the enforceability of these laws. Employers should also review their existing leave and accommodation policies and procedures to ensure they can handle Long COVID in the workplace.

If you have any questions regarding these guidelines, the ADA, or any other federal disability law, please contact a member of the McNees Labor and Employment Group.


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