Thursday, August 12, 2021

Coronavirus Update 8–12–2021: Justice Department confirms that ADA applies to Covid “long-haulers"

A few weeks ago I opined that the ADA likely covers Covid long-haul symptoms as protected disabilities that employers must accommodate.

In recently published policy guidance, the Department of Justice agrees. 

Long COVID is a physical or mental impairment

Long COVID is a physiological condition affecting one or more body systems. For example, some people with long COVID experience: 
  • Lung damage 
  • Heart damage, including inflammation of the heart muscle 
  • Kidney damage 
  • Neurological damage 
  • Damage to the circulatory system resulting in poor blood flow 
  • Lingering emotional illness and other mental health conditions 
Accordingly, long COVID is a physical or mental impairment under the ADA.
Long COVID can substantially limit one or more major life activities

The situations in which an individual with long COVID might be substantially limited in a major life activity are diverse. Among possible examples, some include: 
  • 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   

Is long COVID always a disability? 
No. An individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity.  

You can read the DOL's complete memo here.

My bottom line conclusion has not changed: 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 risks and pitfalls.