From the start of the pandemic, it has become increasingly evident that there will be lasting impacts of COVID-19 on the wider population, particularly in the form of Long Covid. What exactly is Long Covid? And what do employers need to know about employees with Long Covid?
According to recent guidance issued by the Department of Health and Human Services (HHS) and the Department of Justice (DOJ), Long Covid can classify as a disability under certain federal laws. As an employer, it is important you are informed about how this aspect can affect your business. In addition, it is wise to consider the varying amount of support your employees with Long Covid may need.
It is highly important for employers and managers to be aware of what to look out for in their workforce to be able to assess and cater to an employee’s needs. The starting point to making this happen is in developing an understanding of what is Long Covid and how employees with Long Covid are impacted.
What is Long Covid?
Most people with COVID-19 get better within weeks, however, some people can find themselves with symptoms that can last months after first being infected, or may have new or recurring symptoms at a later time. People with this condition are sometimes called “long-haulers” and this condition is known as “Long Covid.”
The Centers for Disease Control and Prevention (CDC) explain that people with Long Covid have a range of new or ongoing symptoms that can last weeks or months and that can worsen with physical or mental activity. The common symptoms of Long Covid include, but are not limited to, the following:
- Tiredness or fatigue
- Difficulty thinking or concentrating (sometimes called “brain fog”)
- Shortness of breath or difficulty breathing
- Dizziness on standing
- Fast-beating or pounding heart (known as heart palpitations)
- Chest pain or tightness
- Tinnitus / earaches
- Joint or muscle pain
- Depression or anxiety
- Loss of taste or smell
According to the CDC, people also experience damage to multiple organs including the heart, lungs, kidneys, skin, and brain.
Is Long Covid a Disability?
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.” Whether an individual with Long Covid is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even 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 HHS/DOJ guidance points out that Long Covid does not always qualify as a disability. Rather, an individualized assessment is necessary to determine whether a person’s symptoms substantially limit a major life activity.
Employers also have an obligation to consider what reasonable adjustments can be made to alleviate any difficulties a disabled employee may be experiencing. For employees with Long Covid, this could include, for example, changing the type of work or working hours to provide time to rest and recover throughout the day or allowing employees to continue working from home.
What Does This Mean for Employers?
The HHS/DOJ guidance specifically analyzed Long Covid in the context of Title II (state and local governments) and Title III (public accommodations) of the American With Disability Act (ADA), Section 504 of the Rehabilitation Act, and Section 1557 of the Patient Protection and Affordable Care Act. The HHS/DOJ guidance makes clear that it did not cover obligations under Title I of the ADA, which applies to private employers. With that said, the legal analysis is largely the same and may be a preview of how agencies such as the U.S. Equal Employment Opportunity Commission (EEOC) may view claims related to Long Covid. For example, the U.S. Department of Labor recently issued a blog post on how employees with Long Covid may be entitled to accommodations under the ADA.
In short, employees with Long Covid who request an accommodation for their disability must be provided with the same opportunity for accommodations as individuals suffering from other disabilities. Accordingly, employers should be familiar with Long Covid as well their responsibilities under various state and federal disability anti-discrimination laws.
While there is still more to learn regarding the symptoms and impact of Long Covid, employers should have policies and procedures in place for conducting an individualized assessment to determine whether an employee’s symptoms substantially limit a major life activity, In addition, they can be analyzing requests for reasonable accommodations and taking steps to review their absence management policies and checking the terms of any permanent health insurance policies to confirm whether employees with Long Covid will be covered.
For effective management of employees with Long Covid, develop your management and HR teams so that they understand the illness and have training to properly help employees. Make sure employees suffering with Long Covid know who to contact for support and review relevant policies.
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