Q: My employee has not recovered fully from coronavirus (COVID-19). How do I handle long-haul COVID-19?
A: As the pandemic continues, a segment of individuals who contracted COVID-19 report that they have not experienced a quick recovery. Rather, they are continuing to suffer symptoms months after initial onset of the disease. Known as coronavirus “long-haulers,” these individuals report that they endure effects such as chronic fatigue, shortness of breath, brain fog and other symptoms far down their road to recovery. While recuperation from a typical cold or flu lasts between seven to 14 days, long-haulers are reportedly experiencing the consequences of COVID-19 for a far longer period and months after diagnosis.
The lengthy effects of COVID-19 for long-haulers raise the question of whether such individuals meet the definition of an individual with a disability under the Americans with Disabilities Act (ADA). The ADA applies to private employers with 15 or more employees and state and local government employers, but that doesn’t mean small businesses are exempt from the ADA altogether. Some states have different laws that may also require smaller employers to provide reasonable accommodations.
On July 26, 2021, President Biden announced his administration’s intent to apply ADA protection to individuals suffering from “long-haul” COVID. The Biden Administration also published joint guidance from the Departments of Justice and Human Services (the Joint Guidance) that specifically states that “long-haul” COVID can be an “actual disability” under the ADA and provides examples involving: (1) lung impairment resulting in a substantial limitation of respiratory function; (2) lingering intestinal pain, vomiting, and nausea; and (3) “brain fog” that substantially limits brain function, concentration and/or thinking. Importantly, the Joint Guidance also recognizes that “long-haul” COVID is “not always a disability,” referring to the fact that to qualify as a disability under the ADA, the physical or mental impairment must “substantially limit one or more major life activities” of the individual, which has typically been interpreted to exclude temporary conditions that an individual will fully recover from.
As a result of the potential for long-haul COVID to be considered a disability, employers should be aware of the ADA’s requirements that prohibit discrimination and require an interactive process to determine whether the individual requires a reasonable accommodation to perform his or her essential job functions without causing the employer an undue hardship. Moreover, an employee’s health condition may not form the basis for an adverse employment action, such as discipline or termination. Of course, employers should review whether an employee’s case of COVID-19 meets the definition of a “serious health condition” and qualifies for unpaid leave under the Family and Medical Leave Act or other state-specific leave laws as well as accommodation requirements under the ADA.
— Ashley Cuttino, Ogletree Deakins, co-chair COVID-19 Litigation Practice Group
This column is provided by Ogletree Deakins, Atlanta, as part of a partnership with the American Rental Association (ARA) for ARA’s Human Resources Assistance Program. ARA members can receive a single sign-on from the ARA webpage to a microsite specific to ARA on the Ogletree Deakins platform; get access to two 30-minute calls with an HR professional per year; access to an FAQ section as well as to Ogletree Deakins’ library of webinars; and access to Ogletree Deakins’ ARA-specific webinars. To learn more, visit ARArental.org/Manage-Business/HR.