Although most people get over COVID-19 in a few weeks, some suffer lingering effects for many months. The people who suffer these lingering effects are referred to as “long-haulers” and the condition is called “long COVID”. This week the U.S. Department of Health and Human Services (“HHS”) and the U.S. Department of Justice (“DOJ”) jointly issued Guidance on how long-haulers may be protected as disabled under the ADA, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act. You can find the Guidance here: https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-covid-disability/index.html.
Generally, the HHS and DOJ indicate that long COVID is a physical or mental impairment and that it can qualify as a disability if it substantially limits one or more major life activities. The Guidance specifies that long COVID can qualify as a disability even its’ symptoms (i.e., headaches, shortness of breath, tiredness, heart palpitations, cough, depression, anxiety, or dizziness) come and go, as long as they would substantially limit a major life activity when the symptom is active. This is going to be problematic because many employees are going to suffer from these symptoms.
You can easily see the difficulty that we are going to encounter in determining under Section 504 if an individual’s anxiety is caused by long COVID and if so, whether it substantially limits a major life activity.
Having said that, long COVID is not always going to constitute a disability, and employers will be required to conduct an individualized assessment to make this determination, just as we have been doing for years with other types of non-COVID impairments.
Although it is not comprehensive, the Guidance gave the following list of examples of reasonable accommodations that might be necessary for long-haulers:
- Additional time to take a test for a student who has difficulty concentrating
- Allowing a customer who is too tired to stand to announce themselves and then sit down while waiting in line.
- Providing fueling assistance to a customer whose joint pain prevents them from pumping their gas.
- Allowing a dizzy person to be accompanied by a service animal trained to stabilize them.
These are just a few examples. We should expect the range of requested accommodations to be very broad.
Employers must first determine which of the Acts apply to them. The ADA will apply to most, while Section 1557 of the ACA and Section 540 of the Rehab Act will apply to fewer.
Employers should devise a written plan outlining the process to be followed when a request for accommodation is made. I.e., who will lead the investigation and response; what information or documentation will be required to substantiate the disability and need for accommodation, who will determine whether a requested accommodation is reasonable or if an alternative is more appropriate; who will be responsible for ensuring that all is done in a timely manner, etc.
Employers are going to need to train their employees who are most likely to be presented with an accommodation request how to respond. We can expect the plaintiff’s lawyers to conduct “drive-by” or “tester” calls asking for specific accommodations, and if our employees do not respond properly, a lawsuit is likely to result.
Keep in mind, the Guidance does not change existing substantive law, but it does provide us with a very clear picture of how leniently these federal agencies intend to interpret the ADA, Rehab Act, and the ACA when dealing with long-haulers.