Published in NEHRA News (8/12/2021)
In honor of the 31st anniversary of the enactment of the Americans With Disabilities Act (“ADA”) on July 26, the Biden Administration has announced the release of a package of guidance and resources relating to applicability of disability-related laws and regulations to people with long COVID, sometimes referred to as “COVID Long-Haulers.”
Most people infected with COVID-19 experience acute symptoms of varying severity. However, some people (estimates range from 10% to 30%) can experience more chronic effects after a COVID infection, including fatigue, coughing, breathing problems, fever, joint and muscle pain, and memory problems or “brain fog.” In some cases, these symptoms can last for many months and have a significant effect on patients’ ability to work in the same way they did before becoming infected with the virus.
The Office of Disability Employment Policy (“ODEP”), which is the arm of the Department of Labor that maintains the Job Accommodation Network (“JAN”), has issued guidance suggesting that depending upon the unique facts and circumstances of each case, long COVID may qualify as a disability under the ADA and therefore entitle an employee to accommodations.
Employers should be attuned to, and take seriously, signs that employees are experiencing long COVID and seeking accommodations. As with any employee who may be disabled, employers may not discriminate against COVID long haulers, and employers have an obligation to engage in an interactive process to determine whether an accommodation is necessary and reasonable under the circumstances.
Employers are encouraged to review and update their policies and procedures as necessary and to consult with employment counsel in order to appropriately respond to these situations when they arise.