At a celebration of the 31st anniversary of the Americans with Disabilities Act (ADA), President Biden announced that long Covid will now be considered a covered disability under the ADA and other federal statutes that protect persons with disabilities. The Americans with Disabilities Act prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government’ programs and services. The executive order highlighted new joint guidance from the United States Departments of Justice (DOJ) and Health and Human Services (HHS) relating to this newly recognized condition.
For context, while most people infected by Covid-19 recover from the illness with little or no lingering effects, reports of long Covid symptoms have been growing among Americans for some time. Long Covid is the long-term persistent condition that people suffer from after contracting Covid-19. The symptoms vary but can include fatigue, ongoing high temperature, breathlessness, cognitive impairment, generalized pain and mental health problems. During his remarks, President Biden noted that these conditions can be disabling and that accommodations for these conditions are necessary for long haulers “so they can live their lives in dignity.”
According to guidance from the DOJ and HHS, long Covid will constitute a disability under the ADA “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.” For example, if a person experiences memory lapses or difficulty concentrating as a result of long Covid substantially limiting their brain function or cognitive ability, that person could be considered disabled. Long Covid will not, however, automatically be considered a disability under the new guidelines and it is cautioned in the guidance that each decision must be made on a case-by-case basis. The guidance further provides that 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.”
This legislation comes at a time where some COVID-19 support programs are nearing their expiration deadlines and as the new coronavirus variant spreads. Expanded unemployment benefits of an additional $300 a week will end in early September, and 25 states have already ended the unemployment benefit. Additional food stamp benefits – that gave some households about $100 more a month – will end on September 30, 2021. Starting October 1st, moreover, student loan borrowers have to resume paying back their federal loans.
While programs such as the Families First Coronavirus Response Act (FFCRA)– which required certain employers to provide paid leave for American workers affected by the pandemic – have expired and several others are approaching their deadlines, employers now have an obligation to provide accommodations to enable employees with long Covid to perform the essential functions of their job. This new obligation is a timely reminder that an employer’s responsibilities in the face of the continuing and resurging pandemic is multi-faceted and enduring.
Employees who suffer from long Covid seeking an accommodation in the workplace will have the ability to claim that they were discriminated against if such accommodation is not offered or discussed. Employers should be aware of the new federal guidelines and plan to have an interactive dialogue with such employees aimed at identifying potential accommodations that meet employees’ needs in relation to their long Covid symptoms. Employers and employees alike should stay updated on any additional guidance that may come from the EEOC on long Covid as a disability.
Attorneys at The Boyd Law Group are monitoring these and other changes to the legal landscape and stand ready to assist our employee and employer clients in navigating these developments in the law. Contact us today and “let us take the worry out of your work.”