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'Long COVID' Now Considered Disability Under ADA  

Even as employers hope that COVID-19 soon will be eradicated, the pandemic may continue to haunt those stuck with the long lasting impact of the virus in the workplace.

COVID corona 4893276 640 smallSo-called “long COVID” and the lasting damage it may cause its victims now can be classified as a disability under Title II (pertaining to state and local government) and Title III (for public accommodations) of the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973 and the Patient Protection and Affordable Care Act, The National Law Review reports.

Both the U.S. Department of Health and Human Services and the U.S. Department of Justice released fresh guidance pertaining to Title II and Title III late last month on the 31st anniversary of the ADA and “[i]n light of the rise of long COVID as a persistent and significant health issue.”

“Critically, the DHS and DOJ’s new guidance carves out Title I of the ADA, which applies to private employers,” The National Law Review reports. “And this guidance does not state that long COVID is always a disability. Instead, ‘[a]n individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity.’”

Despite the carve-out for private employers, the U.S. Department of Labor notes on its website the resources for requesting and providing workplace accommodations for those afflicted with long COVID.

The Centers for Disease Control and Prevention notes that people afflicted with long COVID--also know as “long haulers”--may encounter a wide range of disabilities including tiredness or fatigue, difficulty thinking, shortness of breath or difficulty breathing, headaches, dizziness while standing up, heart palpitations, chest pain, cough, joint or muscle pain, depression or anxiety, fever or loss of taste or smell. Fallout from COVID-19 can also lead to organ damage or autoimmune conditions.

The DOL recommends companies review their disability accommodation policies as well as their obligations for complying with the ADA and federal and state laws. Employers are also urged to find out the long COVID symptoms their workers may be facing and if any of those symptoms impacts their ability to complete one or more crucial life activities, such as seeing and hearing.

Finally, employers should think about changes they should make to improve the workplace environment for employees who suffer from long COVID.

The seriousness and widespread impact of long COVID prompted Congress in December to provide the National Institutes of Health $1.15 billion in funding over four year for researching the long-lasting health concerns. “Energy, time and cognitive focus are limited commodities for everyone, not just people with Long COVID,” writes Forbes senior contributor Prudy Gourguechon. “If businesses can learn to respect those limitations, they will retain Long COVID sufferers (who are often called COVID Long-Haulers,) and their employees who simply don’t want to die from overwork.”

Gourguechon acknowledges that she suffers form long COVID after experiencing “a very mild case of COVID-19” June last year from which she rebounded. “But a distressing and debilitating host of Long COVID symptoms arrived two months later and have persisted," she writes. "I’ve lost most of my sense of smell; I don’t mind that. And I can tell I am recovering. But the exhaustion and brain fog, intermittent dizziness, and difficulty getting myself in gear persist, to varying degrees, most days. I find I can work productively about four to six hours a day—on a good day—instead of the eight to twelve I was used to."

Gourguechon counts herself lucky as she is semi-retired, but she wonders “what I would do if I were still working full time.”

It’s estimated that 10% to 30% of those infected with COVID-19 suffer from long COVID. Factoring that range for the workforce could mean that 1.5% to 4.5% of all employees are impacted.

Gourguechon recommends employers make several adjustments to create an environment that helps their staff who suffer from long COVID. This includes rethinking disability, sick leave and personal leave policies, doing away with unnecessary meetings, setting up rest areas and creating employee support groups.

While the guidance on how employers should handle long COVID “is frustratingly vague,” employers that currently take their employees’ accommodation needs seriously are “already well-positioned to account for the needs of its employees with long COVID symptoms,” JD Supra reports. “Employers should not fall prey to tunnel vision and determine whether an employee’s symptoms are due to COVID per se,” JD Supra notes.

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