COVID-19 is a cruel disease. Over the past year and a half millions of people have died, some of them our friends and loved ones. Lives and businesses were disrupted and economies wrecked by extreme lockdown measures taken in sometimes vain attempts to control the pandemic.
One of the cruelest characteristics of the illness was the mystery that surrounded it as a seemingly impenetrable mist. One moment we thought we knew who would get it and what the effects would be, the next moment it appeared that we knew nothing at all. Elderly people were supposed to be the most vulnerable, but some contracted it and suffered no or very mild symptoms. Other people who were younger and stronger got sicker and died in short order.
Even as vaccines now appear to be wrestling the disease threat level down, and more people are returning to work, all of us—including employers—are still forced to deal with the ongoing reality of COVID-19, in some cases because it simply refuses to go away.
“Long Haulers” is a term that was coined to describe those people who apparently have not been able to shake off the symptoms they acquired after they were first touched by the Coronavirus, sometimes as long as a year ago.
The Centers for Disease Control and Prevention (CDC) has officially named this syndrome as post-acute sequelae of COVID-19. This condition also has become known by the names Post-acute COVID-19 Syndrome, Long-Term or Long COVID.
According to the CDC, the most common and lasting symptoms are extreme fatigue, shortness of breath, cough, joint pain and chest pain. Other issues include cognitive problems, difficulties in thinking or concentrating, brain fog, insomnia, depression, muscle pain, headache, rapid heartbeat and intermittent fever. No one yet knows when these symptoms will end, or even if they will end.
The COVID-19 virus no longer lives in these people, so when they are tested their results will be negative. As a result, in employment situations there is no danger that Long Haulers will be able to infect others, including co-workers or members of the public an employer does business with.
There also is no evidence that the underlying health conditions that make people more susceptible to the Coronavirus—such as obesity, high blood pressure, smoking and diabetes—have anything to do with the persistence of symptoms.
In regard to employment considerations, people suffering from this syndrome may meet the definition of having a “disability” under the Americans With Disabilities Act (ADA). Under the law, a disability is defined as a physical or mental impairment that substantially limits one or more major life activities.
If this turns out to be the case for employees who are defined as Long Haulers, they would be entitled to reasonable accommodations provided by the employer that would enable them to perform the essential functions of their jobs, says attorney Fiona W. Ong of the law firm of Shawe Rosenthal.
To help those employees and employers who find themselves struggling with this issue, the U.S. Department of Labor (DOL) Job Accommodations Network (JAN) recently added to its COVID-19 webpage answers to frequently asked questions on COVID-19 Long Haulers and the ADA. JAN offers the following guidance from the perspective of trying to accommodate Long Haulers:
• Long Haulers are encouraged to ask employers for an accommodation, whether or not they technically meet the disability definition, since employers are free to provide accommodations even in situations where they are not required.
• Although requests for accommodation do not need be formal, JAN encourages Long Haulers to put their requests in writing. Ong notes that once a request has been made, however informally, employers can then require the employee to follow up with a written request.
• Employers may require Long Haulers to provide sufficient medical information to establish coverage under the ADA, clarify the need for accommodation, and explore alternative accommodations. However, employers may not ask for medical information unrelated to these reasons.
• Accommodations may need to be provided for temporary conditions and may be removed once they are no longer required.
• In providing accommodations, which can range widely, employers need not remove essential job functions, lower production standards, provide personal need items (e.g., hearing aids or wheelchairs), or experience an undue hardship. They also need not provide the employee’s preferred accommodation as long as the provided accommodation is effective.
◦ JAN explains that it can help to propose accommodation ideas.
◦ Employers have the duty to propose accommodation ideas even if the employee does not have any ideas.
◦ Healthcare providers may also suggest accommodations.
• If the employer denies the accommodation, JAN suggests that the employee ask why, and that the employer explain why when denying the request.
◦ If the employer believes there is no disability, the employee could provide additional medical information to establish one.
◦ If the employer believes the requested accommodation is an undue hardship, the employee could propose other accommodations (although JAN suggests that employers explore all possible reasonable accommodations before denying a request altogether).
◦ If the employee believes the denial was not valid or the employer refuses to explain the denial, JAN suggests that the employee go up the chain of command, file a grievance if a union member, or file a complaint with the federal Equal Employment Opportunity Commission or state fair employment practices agency, which are charged with enforcement of disability statutes.
Ong makes the point that, although the DOL is offering these guidance documents in an effort to help employers and employees, the department itself does not have enforcement authority for the ADA, which comes under the jurisdiction of the Equal Employment Opportunity Commission (EEOC).