President Biden announced on July 26 that Americans experiencing “long COVID-19” symptoms may qualify as having a disability under the Americans with Disabilities Act (“ADA”), based on guidance issued jointly by the U.S. Department of Justice (“DOJ”) and the U.S. Department of Health and Human Services (“HHS”). With COVID-19 cases rising 64 percent week-over-week as of August 4, and more attention being paid to the long-term ramifications of the disease, this is an issue that could affect many employers.
Long (or long-haul) COVID refers to a prolonged illness experienced by someone who caught the virus but continues to have symptoms weeks or months following the initial diagnosis. Scientists are still studying why some people are more vulnerable to long COVID than others. Typical symptoms include breathlessness, fatigue, memory loss and a general sense of “brain fog,” although persistent symptoms lasting for months can be vague, even for those who initially were asymptomatic.
The guidance from the DOJ and HHS explains that long COVID can be a disability under the ADA, which prohibits discrimination against, and requires reasonable accommodation for, qualified individuals with disabilities. However, the agencies emphasized that an “individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms” limits their ability to work.
It is important to note that President Biden’s statement and agencies’ guidance do not carry the weight of law. The practical implication of the guidance for employers is to raise awareness that they may have to provide paid time off, benefits and reasonable accommodations (such as the ability to work remotely or other flexible work arrangements) for employees who are suffering from long COVID symptoms. Reviewing and making adjustments to existing policies in light of this guidance may be appropriate. Please contact us for additional information and assistance.
Given the fluid nature of COVID-19’s impact, we will continue to provide employer-updates on important issues, including legislative and regulatory changes at both the federal and state levels.
If you have questions about this issue, please contact Aaron Davis or your Fraser Trebilcock attorney.