In July 2021, the Department of Health and Human Services (“HHS”) and the Department of Justice (“DOJ”) jointly published “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557”, which may be found here: https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-covid-disability/index.html.
In short, the Departments take the position that long COVID can qualify as a disability as defined under certain statutes. Specifically, the guidance explains that long COVID can be a disability under Titles II (state and local government) and III (public accommodations) of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and Section 1557 of the Patient Protection and Affordable Care Act (Section 1557), each of which protects people with disabilities from discrimination. In this article, we are going to look at a few of the implications under the ADA.
- What is Long COVID?
In general, long COVID is a term referring to COVID-19 symptoms that linger for weeks or months beyond infection. Long COVID affects between 10% and 30% of people who catch the virus, including those with mild or asymptomatic infections, according to experts. In some cases, symptoms persist for more than a year. Additionally, the Centers for Disease Control defines long COVID as a “wide range of new, returning, or ongoing health problems people can experience four or more weeks after first being infected with the virus that causes COVID-19.”
Like the symptoms of COVID-19, the symptoms of long COVID are not predictable or uniform. HHS cites the following as “common symptoms of long COVID”:
- Tiredness or fatigue
- Difficulty thinking or concentrating (sometimes called “brain fog”)
- Shortness of breath or difficulty breathing
- Dizziness on standing
- Fast-beating or pounding heart (known as heart palpitations)
- Chest pain
- Joint or muscle pain
- Depression or anxiety
- Loss of taste or smell
- Some also experience damage to multiple organs including the heart, lungs, kidneys, skin, and brain.
However, the published guidance goes on to note that the list “is not exhaustive.”
- When is Long COVID Considered a Disability Under the ADA?
Long COVID can be a disability under the ADA if it substantially limits one or more major life activities. More specifically, the ADA and its related rules define a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual (“actual disability”); a person with a record of such an impairment (“record of”); or a person who is regarded as having such an impairment (“regarded as”). 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.
Thus, someone living with long COVID is entitled to disability-based protections if the symptoms manifest in such a way that they substantially limit at least one major life activities. As you probably know, “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. Of note, HHS explains that “[e]ven if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.”
- Will Long COVID Always Be Considered a Disability Under the ADA?
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. For example, 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. On the other hand, if a person’s long COVID symptoms manifest only as an occasional cough – maybe not. In short: long COVID is not always a disability – but it can be.
- What Does This Mean for Employers?
People with long COVID that qualifies as a disability under the ADA are entitled to the same protections from discrimination as any other person with a disability under the ADA. Put simply, they are entitled to full and equal opportunities to participate in and enjoy all aspects of civic and commercial life.
For example, this may mean that businesses will sometimes need to provide the person suffering from long COVID with a reasonable accommodation. As such, it will be important to employers to monitor changes and new information pertaining to long COVID as we all move forward in this ever-changing world.