August 5, 2021
For some people, the symptoms from contracting COVID-19 do not go away after they test negative and are outside of the contagious window for spreading the virus. These individuals are considered “long-haulers” and the condition is known as “Long COVID.” Some studies indicate that 10% of COVID-19 patients may become long haulers. This is important to you as an employer because Long COVID can be classified as a disability under federal law, triggering employee protections, namely, the requirement to make reasonable accommodations to employees with the illness. While Long COVID has not formally been classified as a disability under state law, we can anticipate that it will.
According to the Centers for Disease Control and Prevention (CDC), people with Long COVID have a range of new or ongoing symptoms that can last weeks or months after they are infected with the virus and that can then worsen with physical or mental activity. The common symptoms of Long COVID include tiredness or fatigue, shortness of breath, dizziness on standing, headache, heart palpitations, chest pain, fever, cough, loss of taste or smell, difficulty concentrating or thinking (i.e., “brain fog”), and depression or anxiety. This list is not exhaustive, and some people also experience damage to multiple organs including the heart, lungs, kidneys, skin, and brain.
Under the Americans with Disabilities Act (ADA), Long COVID is classified as a disability “if the person’s condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits’ one or more major life activities.” Notably, the classification is essentially the same under the Fair Employment and Housing Act (FEHA), except FEHA requires only that a mental and physical disability “limit” a major life activity, not a substantial limit, but a limit.
Having Long COVID does not automatically mean that an individual has a disability. An individualized assessment is necessary to determine whether a person’s Long COVID condition or any of its symptoms [substantially] limits a major life activity.
Some examples of situations in which an individual with Long COVID might be [substantially] limited in a major life activity include, but are not limited to:
- A person who has lung damage that causes shortness of breath, fatigue, and related effects is [substantially] limited in respiratory infection.
- A person who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is [substantially] limited in gastrointestinal function.
- A person who experiences memory lapses and “brain fog” is [substantially] limited in brain function, concentrating, and/or thinking.
Once an employer becomes aware that an employee has Long COVID, they should promptly engage in the interactive process to explore potential reasonable accommodations that allows the employee to perform their job effectively, unless doing so would produce undue hardship to the employer’s business. For example, an employee who experiences dizziness may be offered a chair to sit while performing their job duties, or an employee with depression may be offered a flexible work schedule or job sharing. What is important is that the process is initiated proactively and in good faith, as liability for failure to provide reasonable accommodation ensues when the employer is responsible for the breakdown in communication upon notice of the condition.
As changes in the law persist and the lines remain blurred in the COVID-19 era, PB&W will continue to be steadfast in its approach to providing clients with up-to-date counsel and advice. Please do not hesitate to contact our Employment Law department for guidance and assistance regarding compliance with Long COVID, or any employment-related legal issue.