Use this button to switch between dark and light mode.

How Will “Long COVID” Impact Employees, Employers and the Workplace?

December 23, 2022

By Kevin Hylton | LexisNexis Practical Guidance

A landmark study by researchers at the University of Leicester in England and just published by The Lancet found that almost half of COVID survivors globally, including both children and adults, have lingering symptoms four months later.

The study provided empirical evidence to confirm what many have observed from friends and family members — and their personal experience — that fatigue, sleep issues and breathing difficulties continue to be a problem long after the virus has cleared the body. The de facto term for this troubling phenomenon is Long COVID.

“Long COVID is roughly defined as symptoms that persist or appear long after the initial infection is gone, but a consensus definition has not yet been broadly accepted,” Fortune reported. “Many experts contend that long COVID is best defined as a chronic-fatigue syndrome condition that develops after COVID illness, similar to other post-viral syndromes that can occur after infection.”

Beyond the obvious public health concerns, a growing number of economists are pointing to Long COVID as a real threat to the American workforce.

“There remain many unknowns about long COVID … but this much is clear: The illness is disabling thousands, perhaps millions, of workers to such an extent that they must throttle back hours or leave the workforce altogether,” according to CNBC. “In other words, at a time when job openings are near an all-time high, long COVID is reducing the supply of people able to fill those positions.”

The Washington Post even warned recently that mass long COVID disability threatens the economy.

Against this backdrop, the legal implications stemming from the rise of Long COVID are now coming to the fore, according to Jonathan Mook, a partner in the Labor & Employment Department of DiMuro Ginsberg PC. The central question is whether employees suffering from long-haul COVID symptoms may qualify for protections under the Americans with Disabilities Act (ADA).

“The CDC and various medical journals have recognized long COVID, but the real problem here is that there are no established medical procedures or tests that can confirm that someone has long COVID,” Mook said. “So we’re in this area where we know long COVID is real, but we don’t have any medical tests that can objectively say, ‘Yes, you have long COVID’ or ‘No, you don’t have long COVID.’”

From a legal perspective, the problem this creates is that it’s unclear whether an employee who says they are suffering from Long COVID may be entitled to protections under the ADA, which can be required for a variety of reasons.

“For example, there can be coverage under the ADA, even if a person is not diagnosed with long COVID, if an employer takes an adverse job action on the basis of a belief or perception that the employee was infected with COVID,” Mook said.

To better protect against potential ADA compliance issues related to Long COVID, there are a few principles that legal professionals ought to be considering right now.

“The first rule of thumb under the ADA is certainly do not ask an employee if they have long COVID,” said Mook. “So if an employee missed time from work due to a COVID infection, the employer should not ask that employee if they have any symptoms of long COVID. That’s going to get the employer in trouble.”

But Mook explained that a scenario that runs a high likelihood of triggering “the whole panoply of requirements under the ADA” is where there is an employee who was out of work due to COVID-19, eventually tested negative and returned to work, but is now starting to have problems doing the various functions required by their job. In that situation, if the employee comes to their manager or the HR department and explains that they are having difficulties working due to long COVID symptoms, the employer is likely obligated to offer that employee reasonable job accommodations as laid out by the ADA.

“Dealing with long COVID in the workplace is very similar to dealing with other types of physical or mental impairments in the workplace under the ADA,” Mook said. “There isn’t a different way of approaching long COVID under the ADA, it’s the same interactive process that an employer needs to go through to assess whether reasonable accommodations are required for an employee.”

Mook noted that, given the nature of how long COVID expresses itself in the workplace (e.g., fatigue, difficulty concentrating, etc.), the most likely accommodation an eligible employee is going to want — and that an employer is probably going to be required to provide — is a remote working option.

Mook is a nationally recognized authority on the Americans with Disabilities Act and is an author of two treatises published by LexisNexis and its subsidiaries: Americans with Disabilities Act: Employee Rights and Employer Obligations; and Americans with Disabilities Act: Accommodations and Commercial Facilities.

I had the privilege of interviewing Mook on the latest episode of our “Practical Guidance: Labor and Employment Series” podcast, where we invite experts to provide insights on timely employment law issues facing legal practitioners. Listen now or download this new episode regarding the impact of Long COVID in the workplace, what employers need to be doing to adjust to this condition impacting many businesses, and recent litigation in the area.