On July 26, 2021, President Biden announced that individuals with long COVID (referred to as COVID long-haulers) could be protected under several federal civil rights laws, including the Americans With Disabilities Act (ADA).
While some individuals fully recover from COVID, others experience debilitating symptoms that last long after first developing COVID-19 (long COVID), including extreme fatigue, shortness of breath, chest pain tightness, and brain fog.
The U.S. Department of Justice and the U.S. Department of Health and Human Services issued joint guidance on this issue explaining that long COVID can be a disability under Titles II (state and local government) and III (public accommodations) of the Americans with Disabilities Act , Section 504 of the Rehabilitation Act of 1973 (Section 504), and Section 1557 of the Patient Protection and Affordable Care Act (Section 1557) if it substantially limits one or more major life activities. The guidance noted that the term “substantially limits” is construed broadly under these laws and should not demand extensive analysis, and provided examples of when long COVID can substantially limit a major life activity:
- A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
- A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
- A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.
The guidance clarified that long COVID is not always a disability and that an individualized assessment is necessary to determine whether a person’s long COVID condition, or any of its symptoms, substantially limits a major life activity. Notwithstanding this clarification, if an employee suffering from long COVID appears to be struggling and/or requests an accommodation, employers should err on the side of caution and engage in the interactive process to see whether they can provide the employee with a reasonable accommodation without causing undue hardship.