Thursday, July 22, 2021

Coronavirus Update 7–22–2021: How the ADA and FMLA apply to Covid long haulers

The risks associated with Covid-19 aren't limited to the 625,000 Americans this virus has killed or the 2.3 million hospitalizations. One of the greatest risks comes from the fact that nearly one-third of Covid-19 patients will develop long-haul symptoms that long outlast the actual infection, and further that nearly one-third of all Covid long haulers had asymptomatic Covid cases. These long-haul symptoms can include fatigue, respiratory problems, "brain fog," body aches and muscle pain, abdominal issues, and loss of smell and taste. They can be quite debilitating and last for months or longer.

If you have an employee experiencing one or more of these long-haul symptoms, what are your legal obligations to that employee under ADA and FMLA?

Americans with Disabilities Act

The ADA defines "disability" as a physical or mental impairment that substantially limits one or more major life activities. Under the ADA, there is no exhaustive list of impairments covered as a disability, and each case is determined based on an individual's specific limitations on major life activities. Temporary impairments, or impairments of limited duration from which one will recover, are not necessarily excluded from the definition of "disability," and must be evaluated on a case-by-base basis. Because Covid long haulers report myriad different symptoms, any one of which may substantially limit one's major life activities, these residual effects may qualify as a disability under the ADA. 

In that case, an employer must engage with the employee in the interactive process to determine if there is available a reasonable accommodation that will enable the employee to perform the essential functions of his or her job despite those long-haul symptoms. According to the Job Accommodation Network, possible reasonable accommodations for Covid long haulers include:
  • providing or modifying equipment or devices;
  • job restructuring (but not eliminating essential job functions or lowering production standards);
  • part-time or modified work schedules (including work-from-home if appropriate);
  • reassignment to a vacant position (but not creating a new position);
  • adjusting or modifying examinations, training materials, or policies;
  • providing readers and interpreters; and
  • making the workplace readily accessible to and usable by people with disabilities.

Family and Medical Leave Act

Under the FMLA, eligible employees are entitled to 12 weeks of annual unpaid leave for a qualifying reason, including an employee's own serious health condition. The FMLA defines a serious health condition as an impairment, illness, injury, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Moreover, the FMLA permits leave to be taken intermittently for chronic, episodic medical conditions. It's not difficult to imagine an employee needing intermittent leave while experiencing a flare-up of any of the long-haul symptoms. This intermittent leave could also work in conjunction with an ADA accommodation, depending on the specific impairment impacting the employee.

Bottom Line

Talk to your employees. There is a good chance that an employee experiencing Covid-related long-haul symptoms may need a combination of ADA accommodations and FMLA leave. But you won't know that unless and until you talk to them. Even a little bit of communication in a situation such as this will go a long way to avoiding any potential legal issues down the road.

* Photo by Nelson Gono on Unsplash