The U.S. Equal Employment Opportunity Commission recently issued new guidance identifying post-COVID conditions as a disability that may qualify for protection under the Americans with Disabilities Act (“ADA”).
The protected condition can go by many names: “long COVID,” “post-COVID,” “long-haul COVID,” “post-acute COVID-19,” “long-term effects of COVID,” or “chronic COVID.” These terms refer to conditions in which people experience new, returning, or ongoing health problems for four or more weeks after being infected with COVID-19. Post-COVID conditions may constitute a disability within the meaning of the ADA even if the symptoms are intermittent. COVID-19 may also exacerbate pre-existing health conditions, transforming those that were not substantially limiting into disabling medical conditions.
The EEOC recommends conducting a case-by-case analysis to determine whether the effects of an employee’s COVID-19 substantially limit a major life activity and constitute a disability. If they do, an employee is entitled to reasonable accommodations in the workplace. Determining which accommodations are reasonable can take place through an “interactive process” between employer and employee.
The ADA also prohibits “association” discrimination, meaning employers may not take adverse action against a worker for having ties to someone with a disability, such as a child or a spouse. Thus, the ADA now protects against this sort of discrimination in relation to “long COVID.”
Employers with questions about conducting reasonable accommodation assessments should contact knowledgeable employment counsel. Employees who suspect they are being mistreated because of “long COVID” symptoms should also consider seeking legal advice.