Categories: Disability Rights

Long Haul Covid May Implicate ADA Disability Protection

The Americans with Disabilities Act (“ADA”) prohibits discrimination against people with real or perceived disabilities, or a history of past disabilities, and requires employers to provide reasonable accommodations to covered disabled workers. “Disabilities” generally are permanent or semi-permanent medical conditions.

As such, the ADA is not implicated by short-term sicknesses such as the flu. But now, it appears COVID-19 can cause a condition called “Long Covid” which may be permanent enough to trigger the Act’s protections. Learn more from our ADA lawyers near you.

Long COVID: The Case for Disability and Accommodations

When we think of catching a virus, we assume a few weeks of not feeling well and then a full recovery. Some viruses are worse than others, but generally speaking, we display a variety of symptoms, our body fights off the virus, and we’re back to normal as if the sickness had never occurred.

When COVID-19 began spreading in December 2019, within just a few short months, doctors began seeing a new phenomenon: people who should have recovered from the virus but had not. Today, this phenomenon has become known as “Long COVID”, and a recent study indicates that nearly 24% of people in the United States who have developed COVID are still experiencing one or more symptoms more than a month after they were diagnosed.

What exactly is “Long COVID”?

“Long COVID” is termed under several names – Post-COVID Conditions, Long COVID, Long Haul COVID, and Post-Acute COVID. The CDC considers an individual to suffer from Long COVID when they have any COVID related health problems that are “new, returning, or ongoing.”

The key is that this is four weeks or more after initial infection. Some of the most common symptoms for Long COVID include difficulty breathing, fatigue, brain fog, and an increase in symptomatic issues after physical activities.

The Case for Disability

On July 26, 2021, the Department of Justice and the Department of Health and Human Services issued joint official guidance that sufferers of Long COVID had disability rights under the ADA. But what defines a disability?

When The Americans with Disabilities Act (“ADA”) was passed, it defined a disability as an impairment that was lifelong, or close to lifelong, and defined “major life activities”, or activities that a non-disabled individual would be able to perform without assistance. These included tasks such as manual tasks, caring for oneself, walking, standing, lifting, etc.

If an individual was unable to perform a major life activity without assistance, the ADA said that the individual would need a reasonable accommodation to help them function to the same capacity as someone without their disability.

When the ADA was amended by the Americans with Disabilities Act Amendment Act in 2008 (“ADAAA”), the definition for “major life activities” was expanded, and they added a section to include “major bodily functions.” These functions then added in issues of neurological, respiratory, circulatory, digestive, bowel, etc. When one considers the expanded ADA definitions, this checks many boxes for an individual who is experiencing Long COVID, as it is unknown when, or if, someone with Long COVID will ever recover.

What is a reasonable accommodation?

Under the ADA, an employer is required by law to provide a reasonable accommodation to any employee suffering from a disability who is unable to perform the functions of the job, so long as the employer does not experience undue hardship by providing the accommodation. In the case of a sufferer of Long COVID, this could be modifying lifting or physical activity requirements, providing more frequent breaks, or allowing an employee who often stands the ability to sit, to name a few. Employers with employees suffering from Long COVID should actively engage in the reasonable accommodation process, considering the individual needs of each employee. The one thing COVID has taught us is that no two sufferers from this virus are exactly the same.