Employees with long-term COVID-19 symptoms may be protected under the Americans with Disabilities Act (“ADA”) if their condition substantially limits one or more major life activities. President Biden announced guidance on this new ADA qualification on July 26, 2021, the 31st anniversary of the passage of the ADA. The Department of Justice (“DOJ”), Health and Human Services (“HHS”), Department of Labor (“DOL”), and other federal agencies have all indicated their support for this employee protection and have provided guidance that attempts to clarify individuals’ related accommodation rights through their respective websites and informational guides.
Studies indicate an estimated 10% of individuals who contracted COVID-19 may experience lingering symptoms for weeks or months after the virus load is undetectable in them. Formally called “Post-Acute Sequelae of SARS-CoV-2” infection (“PASC”), long-term COVID-19 symptoms are commonly referred to as “long COVID,” or individuals may be termed “long-haulers.” According to current public health information and scientific studies, long-term COVID-19 symptoms may limit an individual’s physical work performance and could affect mental capabilities. These include symptoms such as memory lapses and “brain fog,” potentially “substantially limiting” thinking, memory, or concentration. Not every individual’s lingering symptoms will rise to the level of a qualifying disability though. For example, sporadic or minor symptoms may not substantially limit a major life activity. As always, this means that accommodation requests should be analyzed on a case-by-case basis.
Particularly in light of the federal government’s focus on this topic, employers should be ready to handle these accommodation requests. Employers can expect to see a rise in accommodation requests as this issue receives publicity, and should not wait for court decisions to provide examples of employees’ COVID-19 symptoms requiring accommodation upon their return to work. To avoid becoming the test case, employers are well-advised to remember 1) that an employee who says they are unable to do something their employer has asked of them due to long-haul COVID-19 symptoms is potentially asking for an accommodation, 2) the importance of the interactive process when an accommodation request is received, and 3) to consult employment counsel when “tricky” requests come in the door.