“Long COVID” or “long-haul COVID” are terms coined to describe a range of new or ongoing systems that can last weeks or months after first being infected with the COVID-19 virus.  The CDC’s website lists many commonly reported symptoms among “long haulers,” which list includes:

  • Difficulty breathing or shortness of breath
  • Tiredness or fatigue
  • Symptoms that get worse after physical or mental activities
  • Difficulty thinking or concentrating (i.e., “brain fog”)
  • Cough
  • Chest or stomach pain
  • Headaches
  • Heart palpitations (fast-beat or pounding heart)
  • Joint or muscle pain
  • Pins-and-needles feeling
  • Diarrhea
  • Sleep problems
  • Fever
  • Dizziness/lightheadedness
  • Rash
  • Mood changes
  • Changes in smell or taste
  • Changes in menstrual cycles

Employers must now consider whether employees reporting ongoing physical and/or mental impairments following a COVID-19 diagnosis will qualify as “disabled” under the Americans with Disabilities Act (“ADA”).  On July 28, 2021, the U.S. Department of Health and Human Services (“DHHS”) and U.S. Department of Justice (“DOJ”) jointly issued guidance explaining that long COVID may be a disability under provisions of the ADA applicable to state and local government and public accommodations (respectively, Titles II and III), among other federal statutes.

Although the guidance did not expressly apply to Title I of the ADA, which applies to private employers, the guidance is nevertheless useful to private employers in assessing whether long COVID sufferers qualify as disabled – because the definition of “disability” is the same under every title of the Act.

The July 28 joint guidance explains that long COVID is not necessarily a disability – but it may be.  The guidance instructs that an individualized assessment is necessary to determine whether a person’s symptoms “substantially limit” one or more “major life activities,” as those terms are defined in the ADA, which would deem a person disabled within the meaning of the Act.  The guidance then gives some examples of when long COVID could qualify as a disability, including aggregations of symptoms that substantially limit individuals in the major life activities of respiratory function, gastrointestinal function, and brain function.  The guidance further notes that “[e]ven if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.”

The U.S. Equal Employment Opportunity Commission (“EEOC”) is the administrative agency responsible for enforcing the employment provisions of the ADA under Title I.  To date, the EEOC has not addressed long COVID in its COVID-related resources.  However, the DHHS and DOJ’s July 28 joint guidance is still instructive and private employers should be mindful that those employees complaining of long COVID symptoms may qualify as “disabled” under the ADA and require reasonable accommodation.

For further information on this topic, please reach out to blog author, April Walter, at april.walter@keanmiller.com