With the recent spread of the Omicron variant, public focus has turned to the question of whether and how quickly an employee can return to work after testing positive for COVID-19. But for some, including those who became ill before a vaccine was available, testing positive is just the beginning, as symptoms can persist for months on end and can affect the ability to partake in certain of life’s activities.

Recently, the Equal Employment Opportunity Commission (“EEOC”) updated its guidelines with respect to these “long-haulers.” Those who experience ongoing health problems four or more weeks after being infected with COVID-19 are said to be suffering from “long COVID” (also known as “chronic COVID” or “post-acute COVID”) and may be protected under Section 1 of the Americans with Disabilities Act (“ADA”), which is the section that sets forth requirements for nondiscrimination and reasonable accommodations in the employment context.

This latest update follows President Joe Biden’s July 2021 announcement that “long COVID” may be considered a disability under the ADA. Following suit, the EEOC’s new guidelines explicitly discuss “long COVID” and reemphasize the factors taken into consideration in determining whether and to what extent ADA protection exists. It makes clear that, while COVID-19 is not automatically considered a disability, it may cause impairments that themselves are disabilities under the ADA, regardless of whether the initial case of COVID-19 was an actual disability. Further, while any determination must be made on a case-by-case basis, those who are either asymptomatic or have mild COVID symptoms that resolve in a few weeks are not likely to be considered disabled under the ADA, since their symptoms typically do not “substantially limit” a major life activity.

What is “Long COVID”?

Long COVID is marked by ongoing health problems four or more weeks after initial infection. Sufferers of long COVID include those whose original symptoms persist and those who have new or recurring symptoms down the road, provided the individual’s doctor attributes those symptoms to COVID-19.

Explicitly recognized health problems associated with COVID in this context include:

  • limitations in neurological and brain function, such that a person experiences “intermittent multiple-day headaches, dizziness, or brain fog” and, as a result, has difficulty thinking or concentrating;
  • limitations in respiratory function, such that a person initially received supplemental oxygen for breathing difficulties but nonetheless experiences shortness of breath, associated fatigue, and other virus-related sequelae;
  • limitations in cardiovascular and circulatory function, such that a person experiences heart palpitations, chest pain, shortness of breath; or
  • limitations in gastrointestinal function, such that a person experiences intestinal pain, vomiting, and nausea.

What Constitutes a Major Life Activity?

EEOC guidance specifies that people with COVID-19, including those suffering from “long COVID,” will only be considered disabled when their symptoms substantially limit a major life activity. In this sense, the ADA treats COVID-19 no differently than it does other medical conditions.

“Major life activities” is a broad term encompassing a wide range of functions such 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 working.

Moreover, as with other medical conditions, there is no blanket rule. Instead, to determine whether either COVID-19 or “long COVID” substantially limits a major life activity as defined under the ADA, one must conduct an assessment tailored to the individual at issue. In other words, not all who contract COVID-19 will be protected under the ADA, even where symptoms persist for four weeks or longer.

What Does it Mean to “Substantially Limit” a Life Activity?

The term “substantially limits” is construed broadly under the ADA and should not demand extensive analysis. Further, it is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Moreover, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when occur.

To be clear, when dealing with COVID-19 under the ADA, the limitations at issue do not necessarily have to last any particular length of time to be substantially limiting. Rather, the length of the symptoms at issue is simply determinative of whether someone suffers from “long-COVID.” Whether that individual has a covered disability requires an individual assessment, as it would with any other medical condition.

What Types of Accommodations Might Be Used for Long Covid?

Given the fluidity of the law and lack of precedent in this area, employers should be flexible in the types of accommodations they offer to employees suffering from long COVID. According to a blog from the U.S. Department of Labor, accommodations for those disabled by long COVID may include:

  • providing or modifying equipment or devices
  • part-time or modified work schedules
  • reassignment to a vacant position
  • adjusting or modifying examinations, training materials or policies

An employer is not, however, required to:

  • remove essential job functions
  • lower production standards
  • provide personal need items such as hearing aids and wheelchairs
  • provide any accommodation that creates an undue hardship
  • provide an employee’s preferred accommodation as long as the employer provides an effective accommodation

In sum, this most recent update from the EEOC highlights the fact that employers should be ready to see claims from those suffering the symptoms of COVID-19 well into the future. If you have questions on this topic, please contact Rachel Morgenstern at rmorgenstern@jaspanllp.com or Jessica Baquet at jbaquet@jaspanllp.com.