Long-Term COVID-19 Symptoms Raise Specter of Future Failure-to-Hire Claims

Parker Poe Adams & Bernstein LLP

Parker Poe Adams & Bernstein LLP

Earlier this summer, the U.S. Equal Employment Opportunity Commission reminded employers that people suffering long-term COVID-19 symptoms could be entitled to reasonable accommodations under the Americans with Disabilities Act. These symptoms include fatigue, respiratory restrictions, and “brain fog,” all of which could interfere with an employee’s ability to perform essential job functions.

The prospect of such long-term symptoms raises the possibility that employers may hesitate to hire or promote workers who they believe could be affected by such symptoms. Of course, employers cannot ask about medical history such as COVID-19 infections during interviews. However, an applicant could disclose such information, or employers could know about a previous infection for employees being considered for promotion.

In either case, excluding a person from employment simply because they are recovering from COVID-19 could violate the “regarded as” or “history of a” disability prohibitions under the ADA. Employers could not use generalized fear of long-term symptoms as exclusionary criteria. Any employment decisions that take into account potential lingering COVID-19 symptoms would need to be treated the same as any other medical condition. In addition to basing decisions on accurate and current medical information, the employer would need to explore accommodating any actual restrictions imposed due to previous infections.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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