Guidance On Whether “Long COVID-19” Patients Are Covered By The ADA

The Department of Health and Human Services and the Department of Justice have issued a guidance on whether COVID-19 patients experiencing recurring symptoms can be considered disabled under the Americans with Disabilities Act (ADA). While this guidance does not address Title I of the ADA, which applies to employment, it analyzes the definition of disability that is common to all sections of the ADA and is, therefore, relevant to employers. Moreover, the guidance is directly applicable to those who provide state and local government services (ADA, Title II) or operate places of public accommodation (ADA, Title III).

The Centers for Disease Control and Prevention (CDC) explains that those who experience new, returning or ongoing health problems for four or more weeks after first being infected with COVID-19 are considered to have a post-COVID condition, which may be known as “long COVID,” “long-haul COVID,” “post-acute COVID-19,” or “chronic COVID.” These individuals, who may have only been mildly sick with COVID or experienced no initial symptoms, may suffer from: difficulty breathing or shortness of breath, fatigue, difficulty thinking or concentrating, cough, chest or stomach pain, headache, heart palpitations, joint or muscle pain, diarrhea, sleep problems, fever, lightheadedness, rash, mood changes, or changes in smell or taste. 

The ADA applies to individuals with a physical or mental impairment that substantially limits one or more major life activities. The guidance concludes that long COVID is a physical or mental impairment under the ADA that can substantially limit one or more major life activities. While an individualized assessment is necessary to determine whether an employee’s long COVID condition or any of its symptoms substantially limits a major life activity, the guidance gives a few examples of when the ADA may apply:

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

The guidance explains that because long COVID can qualify as a disability under the ADA, “businesses or state or local governments will sometimes need to make changes to the way that they operate to accommodate a person’s long COVID-related limitations.”  

We encourage employers to consider this guidance in relation to employees who may be suffering from long COVID. It is likely that the EEOC will take a similar stance in the employment context and determine that an employer has an obligation to accommodate an employee with long COVID if his/her condition substantially limits one or more major life activities.

As always, a KZA attorney can help you navigate determining whether an employee is protected by the ADA, whether the employee is entitled to an accommodation, and the type of accommodation that may be reasonable. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.