ADA Protections All But Certain For Virus Long- Haulers
By: Jonathan R. Mook
As the COVID-19 pandemic continues to wreak havoc across the U.S., especially with the prevalence of the delta variant, an increasing number of individuals still are suffering the long-term health effects of the virus even though they may have initially been infected months ago.
According to the Centers for Disease Control and Prevention, “long COVID” is defined as “new or ongoing symptoms that can last weeks or months after first being infected with the virus that causes COVID-19.”
The precise manner in which infection with the COVID-19 virus can cause such lingering health problems is not precisely known. The relationship between COVID-19 infection and continued negative health effects, however, is becoming increasingly well documented as the impact of long-haul COVID-19 continues to affect individuals in their daily lives both at home and at work.
Indeed, the U.S. Department of Justice has termed “the rise of long COVID as a persistent and significant health issue.”
Legal Implications of Long-Haul COVID-19
The legal implications stemming from the rise of long-haul COVID-19 are now just coming to the fore, especially in terms of whether long-haulers may qualify for protections under the Americans with Disabilities Act.
A few courts have considered whether infection with the COVID-19 virus, in and of itself, is an ADA disability, and in their rulings have held that it is not.
As U.S. District Judge Tilman E. Self of the U.S. District Court for the Middle District of Georgia pointed out in his May decision in Champion v. Mannington Mills Inc., being required to miss work for a number of days or having to quarantine due to a COVID-19 positive test is not sufficient for coverage under the law. If that were the case, Judge Self observed, “employers across the nation will be shocked to learn that if any of their employees are sick for just a few days, then those employees are ‘disabled’ and now protected by the ADA.”
Importantly, in their dismissal decisions, the courts have recognized that their rulings do not necessarily mean that COVID-19 infection never can rise to the level of an ADA-protected disability — leaving open the distinct possibility that long-haul COVID-19 could qualify for ADA protection.
Biden Administration’s Pronouncements
The U.S. Equal Employment Opportunity Commission, which enforces the employment provisions of the ADA, has not specifically opined on the issue, but reportedly is considering the matter.
Not willing to wait for a pronouncement from the commission, the Biden administration recently decided to move forward to address the protections afforded to those suffering from long-haul COVID-19 under the country’s disability laws.
On July 26, at the ceremony in the Rose Garden marking the 31st anniversary of the ADA, President Joe Biden made clear that those persons suffering from the effects of long-haul COVID-19 may be entitled to the protections of the statute.
As Biden explained, “many Americans who seemingly recover from the virus still face lingering challenges like breathing problems, brain fog, chronic pain, and fatigue. These conditions can sometimes … rise to the level of a disability.”
Thus, Biden stated that his administration was bringing [federal] agencies together to make sure Americans with long COVID, who have a disability, have access to the rights and resources that are due under the disability law, which includes accommodations and services in the workplace, in school, and our healthcare system so they can live their lives in dignity and get the support they need as they continue to navigate these challenges.
In accordance with Biden’s declaration, both the DOJ and the U.S. Department of Health and Human Services released joint guidance, which explains when infection with COVID-19, and in particular, long-haul COVID-19, may rise to the level of an ADA disability.
In conformity with the analysis of disability under the ADA, Biden in his remarks, and the DOJ and HHS in their joint guidance, emphasized that not every person who suffers from long-haul COVID-19 necessarily will be covered by the ADA; an individualized assessment must be made. Nonetheless, the joint guidance points out that coverage may be found where the infection substantially limits one or more of the person’s major life activities.
These activities can include working, performing manual tasks, sleeping, eating, breathing, concentrating and communicating — many of which are activities in which individuals who suffer from long-haul COVID-19 experience significant difficulties.
Given Biden’s statements about the need to support persons suffering from long-haul COVID-19 and the concerted effort of the DOJ and HHS in issuing their joint guidance, the clear message from the Biden administration is that coverage under the ADA will likely be found for persons experiencing significant health effects due to long-haul COVID-19.
What Will the EEOC Say?
Even though the EEOC did not join the Biden administration’s initiative to emphasize the legal protections for employees suffering from long-haul COVID-19, there can be little doubt that the commission, even though ostensibly an independent agency, will soon be on board.
In passing the Americans with Disabilities Act Amendments Act of 2008, Congress made clear that the definitions under the various federal civil rights laws protecting individuals with disabilities are to operate under one constant standard for the definition of “disability” so that “the civil rights of individuals with disabilities will be protected in all settings.”
Thus, the DOJ’s regulations interpreting those sections of the ADA that it enforces — Title II, which prohibits disability discrimination by state and local governments, and Title III, which prohibits disability discrimination by public accommodations and commercial facilities — mirror the definition of “disability” adopted by the EEOC.
The definition of “disability” under Section 504 of the Rehabilitation Act, which also is enforced by the DOJ and HHS (as well as other federal agencies), likewise, is consistent with that under the ADA.
Employers, therefore, are well advised to carefully review the DOJ and HHS joint guidance on the ADA coverage of long-haul COVID-19 for an understanding of how the EEOC and the courts will address the issue under the employment provisions of the ADA.
To have an actual ADA disability, an individual must have a physical or mental impairment that substantially limits a major life activity. The joint guidance makes clear that long-haul COVID-19 is a physical or mental impairment since it is a “physiological condition affecting one or more body systems.”
According to the guidance, long-haul COVID-19 also affects major life activities, with the potential to experience lung, heart and kidney damage, damage to neurological and circulatory systems, and “lingering emotional illness and other mental health conditions.”
Finally, the joint guidance provides examples of where persons with long-haul COVID-19 can be substantially limited in one or more of their major life activities, and hence, disabled under the statute. These include situations where long-haul COVID-19 has resulted in:
- Lung damage that causes shortness of breath, fatigue and related effects, which substantially limits a person’s respiratory function;
- Intestinal pain, vomiting and nausea for months, which substantially limits the individual’s gastrointestinal function; and
- Memory lapses and brain fog, which substantially limits brain function, concentrating and/or thinking.
There undoubtedly are many more health-related consequences of long-haul COVID-19 that will substantially limit a person’s major life activities and rise to the level of an ADA disability. Accordingly, in the coming months (and years) there is little doubt that the rise of long-haul COVID-19 and its consequences for employees and employers alike will have a substantial impact on the development of ADA law and policy.
Avoiding ADA Liability
Even as the COVID-19 pandemic hopefully starts to wane, the long-lasting effects of persons suffering from long-haul COVID-19 will remain.
As a consequence, Assistant Attorney General for Civil Rights Kristen Clarke has promised that the federal government will vigorously enforce the ADA and other federal rights laws to ensure that as the nation responds to, and recovers from, COVID-19 … those with disabilities are full and equal partners in that recovery.
And there is no reason not to take the assistant attorney general at her word.
Accordingly, all employers need to be attuned to their legal obligations with respect to their employees who are experiencing the symptoms of long-haul COVID-19 and to make sure that they have established procedures to engage the employees in an interactive dialogue to determine what, if any, accommodations they may need in order to perform their jobs.
Failure to do so can only entail being the subject of an EEOC charge or a lawsuit, and potentially years of costly litigation — a prospect no employer wishes to contemplate.
Obligations” and “ADA: Public Accommodations and Commercial Facilities.”
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. According to the Department of Justice, “some people continue to experience symptoms that can last weeks or months after first developing COVID-19.” Importantly, “this can happen to anyone who has had COVID-19, even if the initial illness was mild.” See Department of Justice, Office of Public Affairs, DOJ and HHS Issue Guidance on ‘Long COVID’ and Disability Rights Under the ADA, Section 504, and Section 1557, July 26, 2021, available at https://www.justice.gov/opa/pr/doj-and-hhs-issue-guidance-long-covid-and-disability-rights-under-ada-section-504-andsection. (“DOJ and HHS Issue Guidance”).  See Centers for Disease Control and Prevention, Post-COVID Conditions, available at www.cdc.gov/coronavirus/2019-ncov/long-term-effects.html. Some persons experiencing long COVID also can sustain damage to multiple organs including the heart, lungs, kidney, skin and brain. Id.  A February, 2021study published in JAMA Network Open found that approximately 30 percent of COVID-19 patients reported persistent symptoms as long as nine months following their illness. Sequelae in Adults at 6 Months After COVID-19 Infection. JAMA Network Open.
2021;4(2):e210830-e210830. doi:10.1001/jamanetworkopen.2021.0830. More recent reports confirm that COVID-19 may have lingering effects that cause fatigue, shortness of breath, difficulty sleeping, fevers, gastrointestinal issues, anxiety and depression, and what has been termed “brain fog.” See Assessment of the Frequency and Variety of Persistent Symptoms Among Patients with COVID-19; A Systematic Review, JAMA Network Open, 2021;4(5):e2111417. doi:10.1001/jamanetworkopen.2021.11417; Assessment of Prolonged Physiological and Behavioral Changes Associated with COVID-19 Infection, JAMA Network Open.
2021;4(7):e2115959. doi:10.1001/jamanetworkopen.2021.15959; Long COVID: Tackling a Multifaceted Condition Requires a Multidisciplinary Approach. Lancet Infect Dis.
2021;21(5):601-602. doi:10.1016/S1473-3099(21)00043-8; Self-Reported Memory Problems 8 Months After COVID-19 Infection, JAMA Network Open. 2021;4(7):e2118717. doi:10.1001/jamanetworkopen.2021.18717. U.S. Department of Health Human Services and U.S. Department of Justice, Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557, July 26, 2021, available at https://www.ada.gov/long_covid_joint_guidance.pdf (“Joint Guidance”).  See Champion v. Mannington Mills, Inc ., 2021 U.S. District LEXIS 89381 (M.D. Ga. May 10, 2021); Payne v. Wood Servs, 2021 U.S. Dist. LEXIS 28198 (E.D. Pa. Feb. 16, 2021).  Champion, 2021 U.S. District LEXIS 89381, *11.  Anne Cullen, Biden Says Long-Haul COVID Can Be A Disability, Employment Authority –
Discrimination, available at https://www.law360.com/employment-authority/articles/1406785
/biden-says-long-haul-covid-can-be-a-disability-.  Remarks by President Biden Celebrating the 31st Anniversary of the Americans with Disabilities Act, available at https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/07/26/remarks-by-president-biden-celebrating-the-31st-anniversary-of-the-americanswith-disabilities-act/.  Id.  Joint Guidance, at 2-3. Federal civil rights laws define a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual (“actual disability”); a person with a record of such an impairment (“record of”); or a person who is regarded as having a physical or mental impairment (“regarded as”). See, e.g., 42 U.S.C. § 12102(1); 29 U.S.C. § 705(9)(B), (20)(B); 28 C.F.R. §§ 35.108, 36.105; 45 C.F.R. § 92.102(c). The Joint Guidance addresses only the “actual disability” prong of the disability definition.  See Joint Guidance at 3; Assessment of the Frequency and Variety of Persistent Symptoms Among Patients With COVID-19 – A Systematic Review, JAMA Network Open;
2021;4(5):e2111417. doi:10.1001/jamanetworkopen.2021.11417. The U.S. Department of Labor also has launched a new webpage which contains information on how persons can request workplace accommodations under federal disability law for long COVID-19. The website also includes resources for workers with long COVID, such as information on employee benefits. See https://www.dol.gov/agencies/odep/topics/coronavirus-covid-19-longcovid.  154 Congressional Record S8843 (daily ed. Sept. 16, 2008) (Statement of Managers – S.3406). See also H Rep. No. 110-730, Pt. 1 at 7 (“conforming amendments . . . are intended to ensure harmony between the federal civil rights laws”).  Compare 36 C.F.R. § 36.104 (Title III) and 28 C.F.R. § 35.104 (Title II) with 29 C.F.R. §
1630.2 (Title I).  See 29 U.S.C. § 705(9)(B).
 See Joint Guidance at 3.
 Id., at p. 4.
 DOJ and HHS Issue Guidance, supra.