It seems that at every turn, COVID-19 is keeping employers from catching their breath. We’ve discussed on this blog how employers should navigate having employees work from home, reopening and remaining compliant with the law and CDC guidelines, mask and vaccine mandates, and what to do when an employee tests positive for the virus. Now another issue confronts employers: how to best accommodate employees who are suffering from COVID symptoms months after having been infected with the virus—long COVID.

On July 26, 2021, the U.S. Department of Health and Human Services Office for Civil Rights (HHS) and the U.S. Department of Justice Civil Rights Division (DOJ) jointly published guidance on whether long COVID may qualify as a disability subject to the nondiscrimination requirements of the ADA, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act. They concluded that certain cases it does.

A Short Primer on Long COVID

The immediate symptoms of a COVID-19 infection are now as infamous as they are legion—fever, nausea, shortness of breath, fatigue, loss of taste or smell, etc. But with vaccination rates continuing to rise, attention is turning to so-called “long COVID” and the “long-haulers” still ailing months after their initial infections. According to the CDC, these symptoms “are a wide range of new, returning, or ongoing health problems people can experience four or more weeks after first being infected.” Much like with the immediate symptoms, the breadth and severity of long COVID symptoms vary greatly from person to person; sometimes mild and intermittent, other times serious and pervasive. The CDC notes that while this is not uncommon among virus patients generally, “from a scientific standpoint, it is a puzzle.”

Until that puzzle is solved, it falls to employers to determine how to responsibly accommodate the long-haulers within their ranks.

When is Long COVID a Disability?

According to the guidance, while long COVID “does not automatically qualify as a disability,” as with any disability inquiry, an employer is obligated to engage cooperatively with an ailing employee to conduct an “individualized assessment” and determine whether that employee’s long COVID symptoms constitute physical or mental impairments that substantially limit one or more major life activities.

The guidance makes clear that “the term ‘substantially limits’ is construed broadly under these laws and should not demand extensive analysis.” Nonetheless, HHS and the DOJ have provided three possible (but not comprehensive) examples of where long COVID would be considered a disability:

  1. an employee having substantially limited respiratory function due to lung damage
  2. an employee having substantially limited gastrointestinal function (frequent intestinal pain, vomiting, and nausea); and

an employee having substantially limited cognitive function or “brain fog.”

The guidance emphasizes that the symptoms need not necessarily manifest physically—long COVID may substantially effect an individual’s psychological or emotional wellbeing to the point that an accommodation may be required.

What Employers Should Know

The guidance, just like our understanding of long COVID, is frustratingly vague. The silver lining is that any employer already sensitive to the accommodation needs of its employees is already well-positioned to account for the needs of employees with long COVID symptoms. Employers should not fall prey to tunnel vision and determine whether an employee’s symptoms are due to COVID per se.

Rather, they must stay focused on the fundamental question: are these symptoms substantially limiting my employee’s ability to perform their job?

As with any medical condition, the substance of an ensuing “cooperative dialogue” between employer and employee may vary greatly depending on the employee’s duties, their symptoms, and the advice they receive from their medical care providers. Of course, any employer may make the reasonable request that an employee provide a doctor’s note in order to substantiate a request for an accommodation under the ADA, but simply making that request of an employee does not absolve an employer from making reasonable efforts to engage with that employee to determine what accommodations, if any, are available.

Planning for the Future

Employers should also anticipate ongoing and evolving accommodation discussions, particularly if the employee is in fact a COVID “long-hauler.” The long-term effects of a COVID infection are still not fully understood, and the best-prepared employer is the one ready to adapt to an employee’s needs not only reasonably, but also rapidly.

That can mean a few different things.

  1. DOCUMENT. It will be crucial for anyone performing a human resources function to (securely) memorialize the substance of every discussion regarding an employee’s requests for accommodation. At the same time, be sure to sequester and secure any medical records, and work to ensure confidentiality.
  2. ASSESS REGULARLY. As so little is known about long COVID, and because symptoms may suddenly lessen or become more severe in time, employers should require affected employees to agree upon pre-determined “check-in” meetings. At a specific date in the future, employer and employee might reconvene to reassess what further (or fewer) accommodations the employee could require. This is a sensitive issue, however, and is best done in concert with qualified legal counsel.
  3. BE FLEXIBLE. If an employee requires an accommodation for long COVID, be flexible in addressing their requests. Consider whether you can grant the accommodations, and document why you can or cannot. Finally, before denying an accommodation, be sure that there is now reasonable way that the accommodation may be granted.

Whether the issue is discrete or you’re seeking to devise a broad-strokes policy that can affect every employee, it is always wise to consult outside counsel. This will ensure that you are aware of the locally-applicable laws and regulations regarding disability accommodations, particularly COVID-related accommodations. For up-to-date and individualized guidance, contact Kelley Drye & Warren LLP.