Long COVID and Disability Under the Law
The U.S. Department of Health and Human Services (HHS) and the U.S. Department of Justice (DOJ) recently published a document, Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557. The guidance addresses when and how people who are experiencing long-term symptoms from a COVID-19 infection may be protected as individuals with disabilities under Titles II and III of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and Section 1557 of the Patient Protection and Affordable Care Act (often called the Affordable Care Act, or ACA).
The official designation for so-called “long COVID” is Post-Acute Sequelae of SARS-CoV-2 infection (PASC). Symptoms may include fatigue, labored breathing, headache, dizziness, joint and muscle pain, difficulty thinking or concentrating (sometimes called “brain fog”), depression, and loss of taste or smell. There may also be damage to organs, such as the brain, heart, kidneys, and/or lungs. Many people have wondered if the emergence of long COVID would expand the ADA’s definition of disability, but these symptoms and internal disruptions to normal organ function can fit within the already existing definition.
The ADA’s definition of disability protects three categories of people:
People who have a physical or mental impairment that substantially limits one or more major life activities
People who have a record of a physical or mental impairment that substantially limited one or more major life activities
People who are regarded as having such an impairment, whether they have an impairment or not
Long COVID can be both a physical and a mental impairment. Physically, it affects internal body systems such as the circulatory, respiratory, and neurological systems. Mentally, it can cause depression, anxiety, and other mental health problems. These impairments may lead to substantial limitation of one or more major life activities. The DOJ/HHS guidance document gives three examples:
A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
A person with long COVID who has intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.
State and local government agencies covered by Title II of the ADA, businesses covered by Title III of the ADA, and organizations covered by Section 504 (recipients of federal funds) and/or the Affordable Care Act have obligations to ensure the provision of non-discriminatory services. This may include making reasonable modifications in policies and practices, making facilities accessible, and other measures to facilitate equal opportunities for individuals with disabilities.
According to the U.S. Equal Employment Opportunity Commission (EEOC), impairments related to long COVID may also meet the definition of a disability under Title I of the ADA. Employers may need to provide reasonable accommodations to employees with this condition. Long COVID will often include limitations that would not be obvious, in which case employers can request verification from appropriately qualified healthcare professionals. And just like any other disability-related information, the fact that an employee is a “COVID long-hauler” must be kept confidential.
As more people experience lingering symptoms from a COVID-19 infection, one potential source of confusion regarding ADA protection may be the line between impairment and disability. Long-lasting symptoms from COVID-19 are not automatically considered to be a disability under the ADA. The symptoms must cause a substantial limitation of a major life activity, which is why DOJ and HHS emphasize that an individualized assessment is necessary to determine if impairments rise to the level of disability under the ADA and other civil rights laws.
Visit our Coronavirus Information and Resources webpage for a wide variety of information and sources of assistance related to COVID-19 and long COVID in employment, business, health care, education, transit, housing, and more.