Long COVID-19 May Qualify as a Disability Per ADA | OutSolve Blog

Long haulers or Long COVID may be covered under federal, state, and local disability and medical leave laws

During the 31^st anniversary of the Americans with Disabilities Act (ADA), President Biden confirmed that individuals experiencing continued COVID-19 symptoms, known as long-haulers, may be protected under the ADA. The ADA protects individuals with an actual or perceived disability from discrimination. An individual with long COVID would have a disability, under the ADA, if their condition or any of their symptoms is a “physical or mental” impairment that “substantially limits” one or more major life activities. The Biden administration has reported that long COVID-19 is not a presumptive disability so employers will be required to make an individualized assessment to determine if the employee’s COVID-19 symptoms “substantially limit a major life activity.”

Along with guidance from other governmental agencies, the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) issued joint guidance that provides clarity on how disability nondiscrimination laws apply to certain people affected by COVID-19. According to the guidance, the following are examples of long COVID symptoms:

• • • • Tiredness or fatigue
      • Difficulty thinking or concentrating (known as “brain fog”)
      • Shortness of breath or difficulty breathing
      • Headache
      • Dizziness on standing
      • Fast-beating or pounding heart (known as heart palpitations)
      • Chest pain
      • Cough
      • Joint or muscle pain
      • Depression or anxiety
      • Fever
      • Loss of taste or smell
      • Damage to multiple organs, including heart, lungs, kidneys, skin and brain

Although this guidance is not unexpected, in light of the increasing prevalence of long COVID-19 and its lingering physical and psychological effects, employers should be prepared to receive requests for accommodations, conduct individualized assessments, and grant accommodations, unless it places an undue hardship on the employer. These individualized assessments may be difficult for employers especially if the symptoms are intermittent, such as brain fog.  

Resources

White House press release

Long COVID Fact Sheet prepared by the Administration for Community Living

COVID-19 Long Haulers and the ADA prepared by the Job Accommodating Network

Office of Disability Employment Policy (ODEP) long-hauler resources