The Long Road of COVID: How Employers Should Handle "Long COVID" as a Disability
As COVID-19 continues to spread across the U.S. in its fourth surge, the Department of Health and Human Services and Department of Justice have recently issued guidance regarding the long-term symptoms of COVID-19, commonly called “Long COVID,” and how it may implicate the Americans with Disabilities Act. As more people test positive for COVID-19, employers must ensure that they have the tools in place to address “Long COVID” in the workplace.
What is “Long COVID”?
On July 26, 2021, the DHHS and DOJ designated “Long COVID” as a disability under certain sections of the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act. “Long COVID” is the catch-all term for the ongoing symptoms of COVID-19 that can last weeks or months after infection with the virus. The wide range of symptoms covered under “Long COVID” include: tiredness, headaches, dizziness on standing, chest pain, depression, loss of taste or smell, and “brain fog” that is, difficulty thinking or concentrating. These symptoms can arise even in cases where there were no symptoms when the person initially tested positive.
What Should Employers Do?
Employers must perform several tasks to ensure they are prepared for the potential increase in requests for accommodation based on “Long COVID.”
Update Job Descriptions
First, employers need to have their job descriptions reviewed to ensure that the essential functions of each job are accurate and up-to-date. A key element of determining whether an employee is a qualified individual able to receive a reasonable accommodation is whether the employee can perform the essential functions of the job with or without an accommodation. For example, if a security guard is struggling with tiredness, but being awake and alert while on duty are essential functions listed on the job description, then taking multiple naps throughout the day likely would not be a reasonable accommodation. If the function is not listed on the job description, the employer will have greater difficulty proving that it is essential.
Employers should also train all of their managers and supervisors on the key aspects of disabilities law, especially how to respond to accommodation requests, because employees often request accommodations from their direct supervisors. Without proper training, a supervisor could unknowingly violate disabilities law by refusing an accommodation without properly going through the interactive process. Such a violation could occur before either upper management or human resources know about the incident.
Update Handbook and Policies
Employers’ handbooks and policies must also be updated to ensure that they accurately reflect the current state of the law and point employees to the correct individuals who should be contacted to request an accommodation.
Interactive Process Best Practices
Finally, employers should maintain best practices regarding the interactive process with their employees regarding a possible accommodation. The interactive process for an accommodation request should be prompt, thorough and well documented. The employer should also ensure that alternative accommodations are considered if the accommodation requested by the employee would be unduly burdensome on the employer.
Unfortunately, it seems that COVID-19 is not ending as soon as initially hoped. As cases rise, more employees may suffer from one of the many “Long COVID” symptoms. When they do, the employer must be ready to address the request for accommodation in full compliance with the law, otherwise the employer may face substantial damages.