Tag: Americans with Disabilities Act

COVID Updates – Long COVID May Qualify as an ADA Disability

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.

Aaron L. Davis is Shareholder and Chair of Fraser Trebilcock’s labor law practice. You can reach him at adavis@fraserlawfirm.com or (517) 377-0822. 

Can Employers Ask Their Employees if They Have Been Vaccinated?

One of the biggest challenges of the past year for employers has been keeping up with the complex and constantly evolving employment law issues that have arisen during the COVID-19 pandemic. The roll-out of COVID-19 vaccines has been a welcome relief for employers hoping to create safe and productive workplaces, but issues related to vaccines create a new set of questions.

One of the most common is whether employers can inquire about whether their employees have been vaccinated. Employers are wise to seek legal counsel regarding this issue, as any medical inquiry by an employer could give rise to legal risks. In this case, one of the main risks is that such an inquiry could be interpreted as a prohibited disability inquiry under the Americans with Disabilities Act (“ADA”).

As with most legal issues, this one is nuanced. The U.S. Equal Employment Opportunity Commission (“EEOC”) has issued guidance stating that a mere inquiry of vaccination status does not constitute a disability-related inquiry under the ADA. The EEOC explains that there are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Therefore, pursuant to the guidance, “simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.”

However, the guidance suggests that delving further into vaccination status may be problematic. For example, asking why an employee did not receive a vaccination may elicit information about a disability. Such follow-up questions could implicate the ADA and must be considered in light of the ADA’s framework that requires such inquiries to be “job-related and consistent with business necessity.”

The EEOC’s guidance on these issues is just that—guidance—and it is subject to change. As with any workplace policy, before establishing rules concerning vaccines, employers should consult legal counsel in order to understand their rights and responsibilities. If you have any questions about these issues, please contact Klint Kesto or your Fraser Trebilcock attorney.

Fraser Trebilcock attorney and former Michigan State Legislator Klint Kesto has nearly two decades of experience working in both the public and private sectors. You can reach him at kkesto@fraserlawfirm.com or 517.377.0868.