Counsel’s Corner: COVID-19 a Disability?

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EEOC says that Covid can be considered a disability under anti-bias law.

Workers who contract Covid-19 can be protected from discrimination under the Americans with Disabilities Act, the U.S. Equal Employment Opportunity Commission (EEOC) said in new guidance December 14, 2021.

Depending on each worker’s circumstances, the EEOC said, the virus can meet the ADA’s three definitions for a disability, which cover actual physical or mental impairments that substantially limit a major life activity, an employer’s perception that a worker has a disability, or the worker’s record of impairment.

Someone who has Covid-19 and experiences multiple-day headaches, dizziness, and brain fog attributed to the virus is an example of an impairment under the ADA.

However, not every person with Covid-19 will qualify as disabled, the agency said. Employers must assess each employee individually to determine if they meet the appropriate standards, it said. If someone has Covid-19 but is asymptomatic or has mild symptoms like the flu that only last a few weeks with no other consequences, they wouldn’t qualify.

The agency’s revised guidance expands on a September update that said workers suffering from “long-haul” Covid-19 may be disabled under the ADA “in certain circumstances.” The Health & Human Services and Justice departments said in July that long-haul Covid can classify as a disability.

There is no requirement for limitations from Covid-19 to last a particular length of time for someone to qualify under the ADA, the EEOC said. That includes if symptoms come and go.

Impairments that result from getting Covid-19, such as a stroke that limits brain function, can be considered a disability under the ADA. It could be a potential violation of the ADA if an employer prevents an employee from returning to work once they are no longer infectious.

“Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws the EEOC enforces. Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations,” EEOC Chair Charlotte Burrows (D) said in a statement.

‘Nothing Unexpected’

“There’s no changes to the law, it’s what we’ve been saying the whole time—that Covid can be a disability,” said Eve Hill, board chair of the Bazelon Center for Mental Health Law, a disability law advocacy organization.

Karla Grossenbacher, a partner at Seyfarth Shaw focused on labor and employment law, said there’s “nothing unexpected” in the guidance.

“But it’s good to have confirmation that the analysis is what we thought it would be,” she said.

Grossenbacher said this provides “clear guidance on how to analyze the issue” when an employee applies for accommodations based on Covid-19 and that the same traditional analysis applies for determining whether accommodations are necessary.

Covid-19 survivors with lingering symptoms, who call themselves long haulers, can be protected under the Americans with Disabilities Act, according to guidance put out in December by the Justice Department and the Department of Health and Human Services.

People with long Covid can have symptoms such as fatigue, difficulty breathing, muscle and joint pain, headaches, depression or anxiety, and difficulty thinking or concentrating, which has become known as “brain fog,” according to the Centers for Disease Control and Prevention.

Long Covid is classified as a disability “if the person’s condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits’ one or more major life activities,” the guidance said.

Some studies indicate about 10% of Covid-19 patients may become long haulers. Disability rights activists say the Covid-19 pandemic could lead to the largest rise in the number of disabled people in the U.S. in decades.

The announcement was made as President Joe Biden celebrated the 31st anniversary of the landmark disability rights law with lawmakers.

“We’re bringing agencies together to make sure Americans with long Covid who have a disability have access to the rights and resources that are due under the disability law, which includes accommodations and services in the workplace and school and our health-care system so they can live their lives in dignity and get the support they need as they continue to navigate these challenges,” Biden said at the White House.

Some reasonable accommodations for people whose long Covid qualifies as a disability include allowing a person with dizziness to be accompanied by their service animal, providing additional time on a test for a student with difficulty concentrating, and pumping gas for a customer with joint or muscle pain, the guidance said.

Disability rights advocates praised the move by the Biden administration.

“We are glad that the White House recognizes that many COVID long haulers will now be part of the disability community, and therefore are protected under the Americans with Disabilities Act,” Nicole Jorwic, senior director of public policy at the Arc, a nonprofit that advocates for people with intellectual and developmental disabilities, said in an email.

“Guidance from the federal government on COVID as a disability is something that advocates have been asking for,” Jennifer Mathis, director of policy and legal advocacy at the Bazelon Center for Mental Health Law, said in an email.

“COVID has presented important disability rights concerns, including the need for reasonable accommodations and modifications in a variety of contexts, so we were pleased to see the government issue guidance explaining how long COVID may be a disability protected by the Americans with Disabilities Act,” Mathis said.

The CDC released interim guidelines in June to help doctors diagnose and treat long Covid. However, “post-COVID conditions are not yet well understood,” the agency said at that time.
The CDC said it is “challenging” to define long Covid because it is associated “with a spectrum of physical, social, and psychological consequences, as well as functional limitations that can present substantial challenges to patient wellness and quality of life.”

These patients have struggled to get insurance companies to cover their medical treatment and find mental health support after the challenges associated with the disease.

Attorneys expect to see litigation against health insurance companies for failing to pay disability benefits to people with long Covid.

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