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Eric, please elaborate on the EEOC’s new take on long COVID as a disability.

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Since you asked, sure.

If you hung in there with me through the end of yesterday’s post about the U.S. Equal Employment Opportunity Commission’s first Americans with Disabilities Act – COVID-19 lawsuit, I casually mentioned that for the first time, the EEOC recognizes that “long COVID” may be an ADA disability.

New EEOC guidance is still weeks away. But, you can expect it to look a lot like this document from the Departments of Health and Human Services and Justice. So, let’s see what it says.

What is long COVID?

The Centers for Disease Control and Prevention has characterized post-COVID conditions as long COVID, long-haul COVID, post-acute COVID-19, long-term effects of COVID, or chronic COVID.

These symptoms, which can happen to anyone who has had COVID-19, even if the illness was mild or if they had no initial symptoms, include the following:

  • Difficulty breathing or shortness of breath
  • Tiredness or fatigue
  • Symptoms that get worse after physical or mental activities
  • Difficulty thinking or concentrating (sometimes referred to as “brain fog”)
  • Cough
  • Chest or stomach pain
  • Headache
  • Fast-beating or pounding heart (also known as heart palpitations)
  • Joint or muscle pain
  • Pins-and-needles feeling
  • Diarrhea
  • Sleep problems
  • Fever
  • Dizziness on standing (lightheadedness)
  • Rash
  • Mood changes
  • Change in smell or taste
  • Changes in period cycles

What makes long COVID an ADA disability?

At a minimum, a person with long COVID has a disability if the person’s condition or any of its symptoms is a “physical or mental” impairment that “substantially limits” one or more major life activities.

Let’s break this down.

The HHS/DOJ document notes that long COVID is a physiological condition affecting one or more body systems.  For example, some people with long COVID experience physical or mental impairments such as:

  • 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

When might one or more of these conditions substantially limit a major life activity?

“Major life activities” include a wide range of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working.  The term also includes the operation of a major bodily function, such as the functions of the immune system, cardiovascular system, neurological system, circulatory system, or the operation of an organ.

Some examples of ways in which physical/mental impairments from long COVID can substantially limit major life activities 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.

When isn’t long COVID a disability?

The only way you will find out is by asking questions, getting medical information, and performing an individualized assessment, just as you would with any other potential disability under the ADA.

Is there a duty to accommodate when long COVID is a disability?

Yes, assuming that an individual needs help to perform the essential functions of their job. Just as you would with any other disability, an employer should engage in a good-faith, interactive process to determine if it can provide an accommodation without creating an undue hardship on the business.

Here are some examples:

  • Providing additional time on a work assignment for an employee who has difficulty concentrating
  • Modifying procedures so that an employee who usually stands to work can sit down from time to time
  • Modifying a policy to allow a person who experiences dizziness when standing to be accompanied by their service animal that is trained to stabilize them

Where can you learn more about long COVID?

Can we still sign up for “Mandatory Vaccinations At Work Just Got Real!”? 

Heck yeah!

Join me, Amy Epstein Gluck, David Renner, Sid Steinberg, and Gordon Berger on Zoom on Friday, September 17, 2021, at Noon EDT. Five employment attorneys will address everything relating to President Biden’s new vaccination/testing mandate.

Register for the event here. Plus, you can submit your questions to me in advance here.