Guidance on Long COVID Under the ADA

Published September 21, 2021

The U.S. Department of Justice (DOJ) and U.S. Department of Health and Human Services (DOH) issued joint guidance on "Long COVID" as a Disability under the Americans with Disabilities Act (ADA), Section 504, and Section 1557. We review key takeaways. 

What is long COVID? 

According to The Ohio State's Wexner Medical Center, there is currently no consensus on the definition of long COVID. Post-acute COVID, which is defined as "the presence of symptoms beyond 3-4 weeks from the initial onset of symptoms" and Chronic COVID, defined as "symptoms extending beyond 12 weeks from initial onset" is still being investigated as separate diagnoses. Long COVID has been observed to include a vast array of symptoms and effects, including organ damage and "inadequate antibody response." 

The Centers for Disease Control and Prevention (CDC) have stated that the effects of long COVID may vary but can include symptoms such as: 

  • Tiredness or fatigue
  • Difficulty thinking or concentrating (sometimes called “brain fog”)
  • Shortness of breath or difficulty breathing
  • Headache
  • Dizziness on standing
  • Fast-beating or pounding heart (known as heart palpitations)
  • Chest pain
  • Cough
  • Joint or muscle pain
  • Depression or anxiety
  • Fever
  • Loss of taste or smell

It is reported that approximately 10-30% of patients will experience long-term symptoms. COVID 19 survivors with persistent effects have reported mild to severe symptoms that have the potential to impact one or more major life activities.  

Is long COVID a disability?

The ADA defines disability as: 

a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.

In its joint statement on the effects of COVID-19 and the potential for long-term impacts on individuals who experience symptoms after serious health issues have abated, the DOJ and DOH stated that long COVID can be a disability under Titles II and III of the ADA "if it substantially limits one or more major life activities." 

The ADA defines major life activities as: 

caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

The ADA National Network further defines major life activities to include: 

breathing, walking, talking, hearing, seeing, sleeping, caring for one’s self, performing manual tasks, and working. Major life activities also include major bodily functions such as immune system functions, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The joint guidance goes on to define long COVID as a physiological condition that affects one or more body systems, which may include lung damage, heart damage, kidney damage, neurological damage, emotional illness, and damage to the circulatory system. 

For example, a person with lung damage may have difficulty breathing which can substantially limit their ability to participate in physical activities. 

Guidance for employers and service providers

While long COVID has the potential to substantially limit one or more major life activities, it is not always the case, and assessments should be made on a case-by-case basis. 

If it is determined that the effects of long COVID have substantially limited one or more major life activities for an individual, they are entitled to the same protections from discrimination provided by the ADA, Section 504, and Section 1557. These protections may require that organizations provide: 

  • Modification of policies and procedures
  • Reasonable accommodation
  • Effective communication
  • Access to programs and services 

Additionally, covered entities may not charge or assess special fees for persons with qualifying disabilities or discriminate on the basis of disability. 

This also means that persons experiencing the symptoms of long COVID are afforded the same protections as persons with disabilities, including equal participation and access to services

Conclusion

The DOJ and DOH have stated that the CDC continues to work to better understand the impacts of long COVID on affected individuals. Employers and service providers should work closely with their employees and those who participate in their programs, services, and activities, to identify ways in which they can remove barriers for persons covered by the ADA and adopt processes and policies for accommodating such individuals. Covered entities should also assign a responsible person to coordinate accommodation efforts and ensure their compliance efforts, policies, procedures, and processes are accessible and publicly available for use. 

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