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In It For The Long Haul: Employer Obligations To Employees With Long COVID Symptoms

By Salvatore G. Gangemi on October 29, 2021
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Some people continue experiencing COVID-19 symptoms for weeks or months after first developing COVID-19. The Centers for Disease Control and Prevention have defined “long COVID” as “new or ongoing symptoms that can last weeks or months after first being infected with the virus that causes COVID-19.”  With the rise of long COVID, the U.S. Department of Health and Human Services (“HHS”) provided guidance on Long COVID and how it qualifies as a disability under the Americans with Disabilities Act (“ADA”).

Long COVID symptoms include, but are not limited to, tiredness, fatigue, difficulty thinking or concentrating, shortness of breath, headache, dizziness upon standing, heart palpitations, chest pain, cough, joint or muscle pain, depression or anxiety, fever, and loss of taste or smell. In its guidance, the HHS explained that under Title II and III of the ADA, Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Patient Protection and Affordable Care Act, long COVID can be a disability if it substantially limits one or more major life activities.  Major life activities include a wide range of actions including caring for oneself, performing manual tasks, walking, standing, breathing, communicating, and working.

Employees whose long COVID qualifies as a disability are entitled to the same protections from discrimination as any other person with a disability under the ADA.  Accordingly, all employers should ensure they have established procedures to fulfill their legal obligations with respect to employees experiencing the symptoms of long COVID.  When responding to reasonable accommodation requests under the ADA, employers must consider them on an individualized case-by-case basis.  Employers should not assume that there is no reasonable accommodation that would permit the employee to continue to perform the essential functions of the job.  Employers must engage in an interactive dialogue with employees who might need a reasonable accommodation.  Although employers are generally not required to provide the specific accommodation requested if a suitable alternative accommodation exists, depending on the employee’s job and the workplace, employers should consider all the options.  Murtha Cullina’s attorneys are prepared to give guidance issues related to long COVID and the ADA.

Photo of Salvatore G. Gangemi Salvatore G. Gangemi

Salvatore G. Gangemi, a partner at Murtha Cullina, is a veteran labor and employment lawyer with nearly 30 years of litigation and counseling experience.

Employers from across the industry spectrum, including established companies in the senior living and health care fields; manufacturing, construction…

Salvatore G. Gangemi, a partner at Murtha Cullina, is a veteran labor and employment lawyer with nearly 30 years of litigation and counseling experience.

Employers from across the industry spectrum, including established companies in the senior living and health care fields; manufacturing, construction, retail and service firms; and emerging companies, seek Sal’s legal counsel to navigate today’s complex local, state and federal employment laws. His practice includes resolving disputes; advocating in courts and before administrative agencies; counseling on employment-related issues arising from acquisitions; and guiding clients in both long-range strategy and day-to-day administration of their workplaces and employees.

At the federal level, Sal brings extensive experience in OSHA investigations, audits and proceedings; the Fair Labor Standards Act (FLSA); Title VII discrimination matters; the Age Discrimination in Employment Act (ADEA); the Americans with Disabilities Act (ADA); and the Family Medical Leave Act (FMLA). He is also well-versed in state and local employment regulations.

Sal regularly represents clients in matters before the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor and other federal agencies. On the state level, he appears before the New York State Division of Human Rights; the New York City Commission on Human Rights; the Connecticut Commission on Human Rights and Opportunities; the Connecticut Department of Labor; and the New York State Department of Labor. He has litigated cases involving misappropriation of trade secrets, restrictive covenants, breach of employment contract, fiduciary duty and other work-related common law claims.

Clients rely on Sal’s advice on routine human resources matters that arise in their businesses, including requests for reasonable accommodation for those with disabilities, family and medical leave issues, hiring and termination, and wage and hour concerns. Known for his proactive approach to identifying issues before they escalate, he conducts compliance training on sexual harassment prevention and other topics, performs worker classification practice and policy audits, and drafts employment policies and agreements. Sal shares his knowledge of the ever-evolving employment law landscape by speaking at events, conducting continuing legal education seminars and writing articles for a variety of publications.

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  • Posted in:
    Employment & Labor, Health Care and Life Sciences
  • Blog:
    Employment Law Perspectives
  • Organization:
    Murtha Cullina LLP
  • Article: View Original Source

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