The civil rights offices of the Department of Justice (DOJ) and Department of Health and Human Services (HHS) have issued a joint guidance for employers regarding workers with Long COVID—defined as COVID-19 symptoms that persist for months, and perhaps longer.
In addition to the guidance, the document provides resources for additional information and best practices. This document focuses solely on Long COVID, and does not address when COVID-19 may meet the legal definition of disability, DOJ and HHS said.
Long COVID is a term that describes a form of the coronavirus where those who caught the virus have not been able to shake off the symptoms, sometimes for as long as a year. The Centers for Disease Control and Prevention (CDC) named this syndrome post-acute sequelae of COVID-19, and it also is known as Post-acute COVID-19 Syndrome, Long-Term and Long COVID.
The new guidance explains that Long COVID can be considered a disability under Titles II (state and local government) and III (public accommodations) of the Americans with Disabilities Act (ADA); the 1973 Rehabilitation Act and the Patient Protection and Affordable Care Act. Each of these federal laws protects people with disabilities from discrimination.
“The civil rights protections and responsibilities of these federal laws apply even during emergencies,” the DOJ and HHS offices stress. “They cannot be waived.”
The guidance points out that Long COVID can be a physical or mental impairment. Generally, any of the symptoms patients suffer from during a short-term bout of the disease have been found to persist over longer periods in some patients.
A physical impairment is defined as any physiological disorder or condition affecting one or more body systems, including, among others, the neurological, respiratory, cardiovascular, and circulatory systems. A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness.
Long COVID is a physiological condition affecting one or more body systems, the guidance explains. For example, some people with Long COVID experience lung damage; heart damage, including inflammation of the heart muscle; kidney damage; neurological damage; damage to the circulatory system resulting in poor blood flow; and lingering emotional illness and other mental health conditions.
Long COVID can substantially limit one or more major life activities, which the guidance defines as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and, of course, working.
An Important Distinction
The life activities category also includes the operation of a major bodily function, such as the functions of the immune system, cardiovascular system, neurological system, circulatory system, or the operation of an organ.
This is an important distinction for employers to recognize because Long COVID does not always qualify as a disability requiring workplace accommodation, note attorneys for the law firm of Goldberg Segalla. “An individualized assessment is necessary to determine whether a person’s symptoms substantially limit a major life activity,” they observe.
The term “substantially limits” is construed broadly under these laws and should not demand extensive analysis, according to the federal offices. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not need to be severe, permanent, or long-term.
“Whether an individual with Long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms,” the guidance states. “Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.”
The guidance sets out a few specific examples of situations where Long COVID can substantially limit a major life activity:
• A person with Long COVID who has lung damage that causes shortness of breath, fatigue and related effects is substantially limited in respiratory function, among other major life activities.
• A person with Long COVID who has symptoms of intestinal pain, vomiting and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
• A person with Long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating and/or thinking.
People 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, the DOJ and HHS offices emphasize. The guidance documents they issued also provides links to resources for workers who believe they fall into any of these categories, covering those available on the two offices’ websites as well as the Equal Employment Opportunity Commission (EEOC) site.
However, the document does not discuss ADA resources made available to both employers and workers by the Department of Labor, which were discussed by employment attorneys in a recent article in EHS Today.