Some people continue experiencing COVID-19 symptoms for weeks or months after first developing COVID-19. The Centers for Disease Control and Prevention have defined “long COVID” as “new or ongoing symptoms that can last weeks or months after first being infected with the virus that causes COVID-19.”  With the rise of long COVID, the U.S. Department of Health and Human Services (“HHS”) provided guidance on Long COVID and how it qualifies as a disability under the Americans with Disabilities Act (“ADA”).

Long COVID symptoms include, but are not limited to, tiredness, fatigue, difficulty thinking or concentrating, shortness of breath, headache, dizziness upon standing, heart palpitations, chest pain, cough, joint or muscle pain, depression or anxiety, fever, and loss of taste or smell. In its guidance, the HHS explained that under Title II and III of the ADA, Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Patient Protection and Affordable Care Act, long COVID can be a disability if it substantially limits one or more major life activities.  Major life activities include a wide range of actions including caring for oneself, performing manual tasks, walking, standing, breathing, communicating, and working.

Employees whose long COVID qualifies as a disability are entitled to the same protections from discrimination as any other person with a disability under the ADA.  Accordingly, all employers should ensure they have established procedures to fulfill their legal obligations with respect to employees experiencing the symptoms of long COVID.  When responding to reasonable accommodation requests under the ADA, employers must consider them on an individualized case-by-case basis.  Employers should not assume that there is no reasonable accommodation that would permit the employee to continue to perform the essential functions of the job.  Employers must engage in an interactive dialogue with employees who might need a reasonable accommodation.  Although employers are generally not required to provide the specific accommodation requested if a suitable alternative accommodation exists, depending on the employee’s job and the workplace, employers should consider all the options.  Murtha Cullina’s attorneys are prepared to give guidance issues related to long COVID and the ADA.