On July 26, the 31st anniversary of the passage of the Americans with Disabilities Act (ADA), President Biden announced in a Rose Garden briefing that persons experiencing long-term COVID-19 symptoms may qualify as persons with disabilities under the Americans with Disabilities Act (“ADA”) and other federal statutes that protect persons with disabilities, such as Section 504 of the Rehabilitation Act of 1973 (“Rehab Act”) and Section 1557 of the Patient Protection and Affordable Care Act a/k/a “Obamacare.”
Most individuals infected by the coronavirus recover from the COVID-19 illness after several days or weeks of illness, with no lingering effects. Some, however, report loss of taste or smell, fatigue, shortness of breath, difficulty breathing, dizziness, headaches, difficulty concentrating, depression or anxiety, chronic pain, or other symptoms weeks or even months after the virus load is undetectable in them. According to President Biden, these “long-haulers” or “long COVID” patients may qualify for protection under the ADA, which prohibits discrimination against, and requires reasonable accommodation for, qualified individuals with disabilities.
Coinciding with the President’s announcement, the U.S. Departments of Justice and Health and Human Services issued joint agency guidance that long-haul COVID-19 illness may constitute a disability under federal anti-discrimination laws. The agencies added, however, that, as with all physical or mental impairments, an “individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms” limits their abilities. For example, a long-hauler with shortness of breath, fatigue, and tiredness may be substantially limited in respiratory function, while a long-hauler with intestinal distress may be substantially limited in gastrointestinal function. A person with long COVID who experiences memory lapses and “brain fog” may be substantially limited in thinking, memory, or concentration. However, others may experience symptoms only sporadically, not rising to the level of substantially impairing one or more major life activities. Therefore, the agencies cautioned, decisions must be made on a case-by-case basis.
Although the President’s proclamation and the agencies’ informal guidance do not carry the weight of notice-and-comment rulemaking, they are nonetheless timely reminders that employers’ obligations in the face of the continuing (and resurging) COVID pandemic is multi-faceted. Although the Families First Coronavirus Response Act (FFCRA)—which, in 2020, required certain employers to provide brief job-protected leaves to employees impacted by the pandemic—has expired by its own terms, employers with 15 or more employees may still have an obligation to provide time off, flexible work arrangements, job modification or restructuring, or other accommodations to enable employees with long-haul COVID-19 to perform the essential functions of their job. Unlike colds, flus, and other transient viruses typically excluded from the definition of “disability” under the ADA, the coronavirus and its sometimes lingering and debilitating effects may require an interactive dialogue aimed at identifying accommodations that meet employees’ needs without imposing an undue burden on employers. Employers are encouraged to consult employment counsel when responding to requests for accommodation from employees experiencing long-lasting effects of the coronavirus.