ADA Guidance on Long-COVID for Employers

By Mary C. Moffatt

1. RESOURCES

On August 3, 2022, the Department of Health and Human Services (HHS) released the 80+ page “National Research Action Plan on Long COVID” (“Action Plan”), written in response to President Biden’s “Memorandum on Addressing the Long-Term Effects of COVID-19” (published April 5, 2022).The President directed the Secretary of HHS to coordinate a government-wide response to the long-term effects of COVID-19, in conjunction with public- and private-sector partners, and to publish a report within 120 days of the Memorandum… and thus, the Action Plan. 

“Long COVID” is generally recognized as a multi-faceted condition that can impact one or more body systems, and can manifest in a variety of ways such as general fatigue, malaise, heart disease, diabetes, as well as mental and neurologic conditions, such as “brain fog,” depression, or overall weakness. There is no specific test for “long COVID,” but it is generally a variety of symptoms, making it difficult to isolate as a single diagnosis and thus difficult for employers to address in the workplace.  

In the Action Plan, the HHS states long COVID is “broadly defined as signs, symptoms and conditions that continue or develop after initial COVID-19 or SARS-CoV-2 infection (and which) are present four or more weeks after the initial phase of infection; may be multisystemic; and may present with a relapsing-remitting pattern and progression or worsening over time, with the possibility of severe and life-threatening events even months or years after infection.”  Unfortunately, such a definition does not generally help employers in determining the appropriate circumstances under which long COVID (or long COVID symptoms) may constitute a disability and, thus, require workplace accommodations. 

According to the Action Plan, the Department of Labor (DOL) is in the process of “conducting internal synthesized literature reviews of existing research on COVID-19 and long COVID and developing resources for employers on interventions to meet the needs of persons with long COVID including a forthcoming guide for employers to support individuals with long COVID.”  There is no target date stated for the publication of a ‘guide’ so stay tuned.   

On July 12, 2022, the DOL, CDC and Surgeon General announced the “National Online Dialogue on Long COVID’s Workplace Challenges,” which allows participants to submit ideas, questions, and comments regarding long COVID’s workplace challenges, with the goal being to address the workplace challenges and financial impacts of the condition.(www.dol.gov/newsroom/releases/odep/odep20220712).

Employers are also likely aware of the DOJ/HHS “Joint Guidance on Long COVID as a Disability under the ADA, Section 504 and Section 1557” (Joint Guidance)  (www.ada.gov/long_covid_joint_guidance.pdf) as well as the EEOC’s recognition that long COVID may be a disability under the Americans with Disabilities Act (ADA).

The federal government’s commitment of resources to addressing the impact of long COVID should serve to emphasize the continued significance of the condition and encourage employers to carefully consider workplace issues related to long COVID including accommodation requests with respect to the condition.

1. LONG COVID UNDER THE ADA

“Disability” is defined in the ADA as: (a) a physical or mental impairment that substantially limits one or more major life activities, (b) a record of such an impairment, or (c) being regarded as having such an impairment.  42 U.S.C. § 12102(1).  Long COVID and/or the symptoms of long COVID may constitute a disability under the ADA or similar disability-related laws, and thus, may require a workplace accommodation.   

An employer’s response to an accommodation request must include an individualized assessment regarding the employee’s condition and how the condition impacts the employee’s ability to perform the essential job duties. Where an accommodation is needed or requested for the employee to perform those duties, or where an accommodation is obviously necessary, the employer must engage in the interactive process, the extent of which will depend on case circumstances. For example, where the requested accommodation is obviously needed, reasonable and does not create undue hardship, there is not much to the interactive process; in other cases, the process may be more extensive. In either case, the process should be documented. An essential component of the interactive process is to actually discuss the accommodation request and limitations with the employee. 

It is essential to train managers and supervisors regarding what triggers the interactive process and how supervisors should best handle accommodation requests, engaging HR promptly. It is critical to train managers and supervisors to avoid stray comments, emails, etc. of a negative nature made in response to accommodation requests. Off-hand comments, even if made without action or in jest, may only fuel the plaintiff’s later claims of discrimination and retaliation. Russo v. Johnson, 2022 LEXIS 97574 (M.D.Tenn. 2022 (Motion to Dismiss denied as to ADA claims based on failure to accommodate plaintiff’s “situational anxiety” over COVID and her remote work request). 

Typical accommodations for long COVID or its symptoms include flexible work hours, remote work, or leaves of absence but due to the nature of long COVID, employers may need to be creative when developing accommodations to address the unique nature of long COVID and its symptoms.  

2. RECENT COURT DECISIONS

As noted in Baum v. Dunmire Prop. Mgmt, “Federal courts around the country are grappling with whether COVID-19 constitutes a disability under the ADA.” Baum, 2022 LEXIS 54555 (Dist. Colorado, March 25, 2022), p.4, citing, Champion  v. Mannington Mills, Inc., 538 F.Supp.3d 1344 (M.D. Ga. 2021) (explaining that to find millions of Americans “disabled” under the ADA would lead to absurd results); Matias v. Terrapin House, Inc., 21-cv-02288, 2021 LEXIS 176094 (E.D. Pa. Sept. 16, 2021) (citing agency guidance to conclude that COVID-19 may be an ADA disability); Booth v. GTE Fed. Credit Union, 2021 LEXIS 224333 (M.D. Fla. Nov. 20, 2021)(analyzing  lack  of  consensus  regarding COVID-19 as a disability under the ADA). By logical extension, courts will grapple with whether “long COVID” constitutes a disability.  

Under the ADA, (and in very general terms), a plaintiff must be able to show that: (1) they are disabled within the meaning of the ADA; (2) they are otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) they have suffered an adverse employment action as the result of discrimination. For claims based on the employee being “regarded as” disabled, an employer may assert the defense that “transitory and minor” impairments do not constitute a disability.42 U.S.C. § 12102(3)(b). 

In the Matias case (mentioned above), one of the first cases to address specifically a symptom of long-COVID (i.e., loss of smell and taste), the Court held that certain forms of COVID-19 that carry longer-term impairments can qualify as a disability. In denying the employer’s Motion to Dismiss, the Court found plaintiff had stated a “regarded as” claim, that she suffered an adverse employment action and that the employer failed to establish that the impairment was both transitory and minor. Matias v. Terrapin House, Inc., 2021 U.S. Dist. LEXIS 176094. Compare, Payne v. Woods Services, Inc., 520 F. Supp.3d 670 (E.D. Pa. 2021) (Motion to Dismiss granted, where plaintiff failed to allege facts sufficient to establish the severity or length of his symptoms).   

Courts will likely also be faced with claims of failure to accommodate long COVID under the ADA. For example, in Burbach v. Arconic Corp., the District Court denied the employer’s Motion to Dismiss as to plaintiff’s claims under FMLA (interference/retaliation) and the ADA (failure to accommodate/retaliation). The plaintiff, an Asst. General Counsel for the employer, recovered sufficiently from COVID but continued to experience and be treated for COVID-related symptoms. Upon medical advice, the plaintiff requested to work remotely from Slovenia where his spouse had a family home. The employer at first agreed to the request but later denied it, arguing plaintiff needed to be located in the United States rather than Europe. Shortly thereafter, the plaintiff was terminated. 

While the Court reserved many of the issues for determination after discovery, it held that at this early stage in the case, plaintiff had stated enough facts to support his claims, and that it was “reasonable to infer that plaintiff’s impairment in treating and recovering from COVID could have lasted longer than six months.” On the accommodation claim, while noting some of the employer’s concerns regarding the request to work in Slovenia were “well-taken,” the Court ultimately decided “this requires an analysis of the facts surrounding plaintiff’s request and defendant’s reasonable efforts to assist the employee and to communicate with the employee in good faith.”  Burbach v. Arconic Corp., 561 F. Supp. 3d 508, 521 (W.D. Pa. 2021).

3. CONCLUSION

Employers are advised to integrate long COVID concepts into supervisory training and to be diligent when handling long COVID and its various symptoms in the workplace.  As noted in the Action Plan, “Long COVID demands a comprehensive…approach, (using) collaborative efforts across the U.S. government coupled with strong public and private partnership.”  

The challenges of long COVID may well be with us for a long time.