Should Employers Consider “Long COVID” a Disability?

By Shawn M. McLain - McMahon Berger P.C.

July 30, 2021

As the COVID-19 pandemic that started in March of 2020 went on, there were increasing reports of many individuals that were suffering long term effects of infection by the SARS-COV-2 virus. In particular, some individuals began reporting a range of new or ongoing symptoms that lasted weeks or months after they were infected with the virus. These lingering effects became known as “long COVID.”

The U.S. Department of Health and Human Services (“HHS”) and the U.S. Department of Justice Civil Rights Division (“DOJ”) recently issued joint guidance explaining that long COVID could be a disability under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Patient Protection and Affordable Care Act.

As a result, employers should analyze employee claims that they are experiencing long COVID under the lens of applicable disability laws.

What is long COVID and what are the symptoms?

While there is no exhaustive list of symptoms for long COVID, the CDC indicates that individuals experiencing long COVID exhibit common symptoms that often worsen after physical or mental activity such as:

• Tiredness or fatigue
• Difficulty thinking or concentrating (sometimes called “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

Is an employee with long COVID disabled under the ADA, Section 504, and Section 1557?

Maybe. The joint guidance from the HHS and DOJ clearly states that long COVID “can be a disability under the ADA, Section 504, and Section 1557 if it substantially limits one or more major life activities.” Essentially, the same test applies to long COVID as a physical or mental impairment as any other claimed disability.

A person with a record of such impairment or a person who is regarded as having such an impairment also may qualify as having a disability.

It is important to note that an employee with long COVID is not always “disabled” for purposes of the ADA, Section 504, and Section 1557. As with any impairment, employers should conduct an individualized assessment for each employee to determine whether the employee’s long COVID condition or any of its symptoms substantially limit a major life activity. This may be present some difficulties as experts are still studying long COVID to better understand the condition.

When does long COVID substantially limit one or more major life activities?

The HHS and DOJ joint guidance confirms that the term “major life activities” includes a wide range of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working.  The term also includes the operation of a major bodily function, such as the functions of the immune system, cardiovascular system, neurological system, circulatory system, or the operation of an organ.

The term “substantially limits” is typically construed broadly and the impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not need to be severe, permanent, or long-term.  Some examples provided by the joint guidance of when an individual with long COVID might be substantially limited in a major life activity include:

• A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects as they are 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 as they are substantially limited in gastrointestinal function, among other major life activities.
• A person with long COVID who experiences memory lapses and “brain fog” as they are substantially limited in brain function, concentrating, and/or thinking.

How should an employer respond to a claim that an employee has long COVID?

Because an employee with long COVID might qualify as an individual with a disability under the ADA, Section 504, and Section 1557, it is important that employers engage in the ADA’s interactive process with an employee who may be claiming they have long COVID. Participating in this required exchange will assist in making the determination as to whether the employee has a disability and whether any reasonable accommodations can be provided.

Thoughts and Tips for Employers:

• Do not outright dismiss employee claims that they have long COVID and need workplace accommodations. Failure to consider whether an employee is disabled and needs workplace accommodations could expose your company to liability.
• Be prepared to engage in the interactive process with employees that claim they need workplace accommodations for long COVID related symptoms and limitations.
• Be aware of state law obligations for those employees with disabilities as long COVID could be considered a disability under state law as well.
• Contact us for more precise guidance and to assist in properly analyzing whether a claim of long COVID meets the requirements of a disability under state and federal law.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.