The Equal Employment Opportunity Commission (“EEOC”) recently updated its guidelines with respect to those workers who experience ongoing health problems four or more weeks after being infected with COVID-19. These individuals are said to be suffering from “long COVID”, also known as “chronic COVID” or “post-acute COVID”.
Long COVID is marked by ongoing health problems four (4) or more weeks after initial infection. Sufferers of long COVID include those whose original symptoms persist and those who have new or recurring symptoms later, provided the individual’s doctor attributes those symptoms to COVID-19.
Explicitly recognized health problems associated with COVID in this context include:
- limitations in neurological and brain function, such that a person experiences “intermittent multiple-day headaches, dizziness, or brain fog” and, as a result, has difficulty thinking or concentrating;
- limitations in respiratory function, such that a person initially received supplemental oxygen for breathing difficulties but nonetheless experiences shortness of breath, associated fatigue, and other virus-related sequelae;
- limitations in cardiovascular and circulatory function, such that a person experiences heart palpitations, chest pain, shortness of breath; or
- limitations in gastrointestinal function, such that a person experiences intestinal pain, vomiting, and nausea.
“Long Covid” may be protected under the Americans with Disabilities Act (“ADA”), which forbids discrimination against individuals who suffer from disabilities, as well as requiring reasonable accommodations in the workplace under certain circumstances.
Is “Long Covid” Covered by the ADA?
The EEOC’s new guidelines reemphasize the factors taken into consideration in determining whether and to what extent ADA protection exists. It makes clear that, while “Long Covid” is not automatically considered a disability, it may cause impairments that themselves are disabilities under the ADA. Further, while any determination must be made on a case-by-case basis, those who are either asymptomatic or have mild COVID symptoms that resolve in a few weeks are not likely to be considered disabled under the ADA, since their symptoms typically do not “substantially limit” a major life activity.
“Major life activities” include, but are not necessarily limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working.
Whether one is substantially limited is construed broadly under the ADA, and is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Moreover, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when occur.
What Types of Accommodations Might Be Used for Long Covid?
Employers should be flexible with regard to the types of accommodations they offer to employees suffering from long COVID. Accommodations for those disabled by long COVID may include:
- providing or modifying equipment or devices
- part-time or modified work schedules
- reassignment to a vacant position
- adjusting or modifying examinations, training materials or policies
An employer is not, however, required to:
- remove essential job functions
- lower production standards
- provide personal need items such as hearing aids and wheelchairs
- provide any accommodation that creates an undue hardship
- provide an employee’s preferred accommodation as long as the employer provides an effective accommodation
If you suffer from “Long Covid” and your symptoms are affecting your ability to perform your job, make sure to contact Feather Law Firm, P.C. at (516) 745-9000 or email@example.com to determine your rights under the law.