On July 26, 2021, the US Department of Health and Human Services (HHS) and the Department of Justice (DOJ) jointly published a guidance on “long COVID” as a disability under the American with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act. Each of these federal laws protects people with disabilities from discrimination.
Although many people with COVID-19 get better within weeks, some people continue to experience symptoms that can last months after first being infected, or may have new or recurring symptoms at a later time. This can happen to anyone who has had COVID-19, even if the initial illness was mild. People with this condition are sometimes called ‘long haulers.” This condition is now known as “long COVID.” The guidance provides additional clarity on how these disability nondiscrimination laws apply to people who may be newly covered under these laws because of the impact of COVID-19 infection on their bodies.
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 that causes COVID-19. Symptoms can worsen with physical or mental activity. Common symptoms of long COVID include:
- Tiredness or fatigue
- Difficulty thinking or concentrating (sometimes called “brain fog”)
- Shortness of breath or difficulty breathing
- Headache
- Dizziness on standing
- Fast-beating or pounding heart (known as heart palpitations)
- Chest pain
- Cough
- Joint or muscle pain
- Depression or anxiety
- Fever
- Loss of taste or smell
The list is not exhaustive. Some people also experience damage to multiple organs including the heart, lungs, kidneys, skin, and brain.
Long COVID can be a disability under the ADA, Section 504, and Section 1557 if it substantially limits one or more major life activities. A person with long COVID is considered to have 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. Some physiological conditions affecting one or more body systems for people with long COVID include:
- Lung damage
- Heart damage, including inflammation of the heart muscle
- Kidney damage
- Neurological damage
- Damage to the circulatory system resulting in poor blood flow
- Lingering emotional illness and other mental health conditions
It is important to be aware that long COVID is not always 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 possible examples of long COVID substantially limiting a major life activity may include:
- 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 with long COVID who qualify as having a disability are entitled to the same protections from discrimination as any other person with a disability under the ADA, Section 504, and Section 1557. Importantly, these people are entitled to full and equal opportunities to participate in and enjoy all aspects of civic and commercial life.
The way that businesses or state or local governments sometimes operate may need to make changes to accommodate a person with long COVID-related limitations. For people whose long COVID qualifies as a disability, these changes, or “reasonable modifications,” may include:
- Providing additional time on a test for a student who has difficulty concentrating
- Modifying procedures so a customer who finds it too tiring to stand in line can announce their presence and sit down without losing their place in line
- Providing refueling assistance at a gas station for a customer whose joint or muscle pain prevents them from pumping their own gas
- Modifying a policy to allow a person who experiences dizziness when standing to be accompanied by their service animal that is trained to stabilize them
The Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557 can be accessed here.
The CDC’s page on post-COVID conditions, which discusses long COVID, can be accessed here.
The Civil Rights Division of the Department of Justice page on the ADA.gov website that discusses the topics related to COVID-19 and the ADA can be accessed here.
The EEOC’s publication, What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC Laws, can be accessed here.
Compliance Perspective
Issue
All staff, including facility leadership and the human resource department, should be aware that long COVID symptoms or conditions that developed because of the COVID virus can be considered a disability, and that long COVID is not always 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. Disability Discrimination is prohibited in the workplace. When there are concerns about an employee returning to work after an illness or injury, human resources should be contacted immediately. Every effort should be made to have the employee evaluated to determine any limitations on required tasks or specific duties that the employee can perform. While federal law prohibits discrimination in the workplace, most states have enacted their own additional laws regarding workplace discrimination. It is essential that administration and human resources are aware of their state-specific laws.
Discussion Points
- Review your policies and procedures for prevention of discrimination. Incorporate long COVID symptoms and conditions into your policy and ensure that an individualized assessment is included in your procedure for persons with long COVID. Ensure that your state’s laws for discrimination are included in the policies and procedures.
- Train staff about their rights to be free from discrimination in the workplace. Include trainings on long COVID. Teach staff to report any concerns of discrimination to their immediate supervisor, the administrator, human resources, the compliance and ethics officer, or through the facility’s hotline.
- Periodically audit by anonymously polling staff to determine if they may be experiencing discrimination in the workplace, or if they have observed it happening to others. In addition, ensure that all staff are aware of how to report any concerns of discrimination.
