New Guidance Recognizes "Long COVID" as a Disability

On July 26, 2021, the U.S. Department of Health and Human Services (HHS) and the Department of Justice (DOJ) released joint guidance announcing “long COVD” as a recognized disability under Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and section 1557 of the Affordable Care Act.  Specifically, the guidance was developed to provide clarity on how disability nondiscrimination laws apply to people who may be covered under these laws based on the physical post-COVID infection symptoms that linger after their initial infection and treatment periods.

Background of New Guidance

While a majority of people infected with COVID-19 recover within weeks, many people endure long lasting symptoms of the virus, or may have new or recurring symptoms at a later time, regardless of the severity of the initial reaction to COVID-19.  Previously, individuals suffering long term or delayed effects have been known as “long-haulers;” however, the official label of the condition recognized by the HHS, DOJ and other government entities is “Post-Acute Sequelae of SARS-COVID-2 (PASC),” or more commonly known as “long COVID." Coinciding with the 31^st Anniversary of the ADA, the White House announced the resources available to individuals suffering from long COVID that may be covered by Federal civil rights laws. Additionally, information was provided on how to access resources for disability support services and information about accommodations in the workplace.

Physical and Mental Effects of Post-Acute Sequelae of SARS-COVID-2 (PASC) or “Long COVID”

According to the Centers for Disease Control and Prevention (CDC), people with long COVID have a range of new or ongoing symptoms that can last weeks or months after initial infection.   Consequently, these symptoms can worsen with physical or mental activity. However, not all of the symptoms are known to affect major life activities, a distinction that may be necessary for an individual’s case to rise to the level of a recognized disability. Examples of common symptoms of long COVID include:

• 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

Severe (less common) symptoms of long COVID include:

• Lung damage
• Heart damage, including inflammation of the heart muscle
• Kidney damage
• Neurological damage
• Damage to the circulatory system resulting in poor blood flow
• Lingering emotional illness and other mental health conditions

Employer Takeaways

Upon its release, affected employers that must comply with the HHS/DOJ guidance immediately.  Specifically, this guidance explains that long COVID can be a disability under the ADA (15 or more employees), Section 504 of the Rehabilitation Act of 1973 (federal contracts employers), and Section 1557 of the Affordable Care Act.  The guidance explains how these laws may apply and provides resources for employer best practices. As of now, the guidance focuses solely on long COVID, and does not address when COVID-19 may meet the legal definition of disability.  Importantly, the civil rights protections and responsibilities of applicable federal laws apply even during emergencies.  Employers must be cautious when assessing applicable disability nondiscrimination workplace laws. Therefore, an individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity.  Ultimately, the CDC and contributing health experts will develop additional guidelines to assist covered entities in making disability determinations.