COVID-19 is still keeping employers on their toes. As the delta variant continues to spread, employers are reeling with the pandemic-related issues for their employees, like when to bring employees back to the office, vaccines, and more.
To add to long list of COVID-related employer considerations, the U.S. Department of Health and Human Services and the U.S. Department of Justice just recently issued guidance explaining that “long COVID” can be a disability under the Americans with Disabilities Act (ADA) and other federal laws.
Citing to the Centers for Disease Control and Prevention (CDC), the guidance recognizes that some individuals have ongoing symptoms or experience new/returning symptoms post-COVID-19 infection. Common symptoms of long COVID include: tiredness or fatigue; difficulty thinking or concentrating; shortness of breath or difficulty breathing; headache; headache; dizziness on standing; heart palpitations; chest pain; cough; joint or muscle pain; depression or anxiety; fever; and loss of taste or smell. In some cases, people experience damage to organs, including the heart, lungs, kidneys, skin and brain.
Although the guidance acknowledges that long COVID is not always a disability, an individualized assessment is necessary to determine whether a person’s condition or symptoms substantially limit a major life activity and whether an accommodation (e.g., continued work-at-home or a more isolated workspace) would be appropriate.
It is crucial to ask employees to put their accommodation requests in writing. Employers must memorialize the substance of each interactive discussion about potential accommodations, including whether certain accommodations are reasonable or unreasonable and why. At the same time, ensure the confidentiality of medical information and documentation (such as the ADA Recommendations Form) from the treating medical provider.
Employers should anticipate ongoing and evolving accommodation discussions for employees suffering long COVID. Still have questions or need an ADA Recommendations Form? Don’t worry- we are here to help!
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