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It has been more than three years since COVID-19 changed not only the way in which we work, but our entire lives as well. The lockdowns have ended, and we now are venturing into uncharted waters in what has been termed the new normal.
WHAT THAT TERM MEANS IS NOT PRECISELY CLEAR, AS THE COVID-19 virus continues to surprise us. We are just starting to learn about some of the strange effects that the virus has upon people, such as hairy tongue, as well as the potential long-term effects of having been infected with COVID-19—so-called long COVID. The impact of long COVID is just being felt, and just as the advent of the pandemic had unforeseen effects upon the workplace, it is safe to say that the impact of long COVID will present new challenges for employers and those who represent them.
Over the past few years, we have been inundated with false or misleading information about COVID. However, one thing is clear: long COVID is real and has been diagnosed by medical professionals in the United States and in countries around the world. Long COVID is defined by the Centers for Disease Control and Prevention (CDC) as new, recurring, or ongoing health problems experienced at least four weeks after infection with COVID-19, including brain fog, headaches, heart palpitations, mood swings, light headedness, and autoimmune conditions damaging internal organs.1
According to a recent study published in The Lancet, persons infected with COVID-19 have an increased risk for two years of developing brain disorders, including dementia, epilepsy, psychosis, and cognitive deficits (including what has been termed chemo brain).2 Additionally, according to the CDC, COVID-19 survivors have twice the risk of developing pulmonary embolisms or respiratory conditions.3 Most worrisome, according to a recent Veterans Administration study reported in Nature Medicine, vaccines may not prevent long COVID from occurring.4
Although the National Institutes of Health (NIH) has embarked upon a multi-billion-dollar study of long COVID, at the present time there is no established verification through medical tests nor established treatments for the malady. So far, the NIH has hypothesized that there may be three possible causes of long COVID: (1) COVID-19 particles become active again, causing symptoms to reappear; (2) the immune system goes into overdrive in fighting the COVID-19 infection, causing inflammation and damage throughout a person’s body; or (3) the immune system never shuts down (even after the COVID-19 infection dissipates) and, as a result, continues to wreak havoc in a person’s body.5
Although many employers are now just reporting that some of their employees are experiencing the symptoms of long COVID, it is more than likely that in the near future, increasing numbers of employers will be dealing with the impact of long COVID. It has been estimated that one in four persons who contract COVID-19 become long haulers, and according to a study published by the Brookings Institution, 16 million working-age Americans are struggling with the effects of long COVID. Moreover, between two and four million Americans are not working as a consequence—resulting in over 150 billion dollars per year in lost wages.6
Dealing with what may become a tsunami of long COVID-infected employees will create legal challenges for all employers. Most prominently, federal and state laws protecting persons who may be classified as disabled will affect how employers deal with the disruption caused by employees experiencing the effects of long COVID. State and federal leave laws, including the federal Family and Medical Leave Act (FMLA), may come into play as well.7
Both the Equal Employment Opportunity Commission (EEOC) and the courts have generally recognized that being infected with the COVID-19 virus and having mild symptoms with no lasting consequences does not rise to the level of an actual disability under the Americans with Disabilities Act (ADA).8 Persons who have contracted COVID-19 and, as a result, need to quarantine and miss work for a few weeks cannot be said to have a physical or mental impairment that substantially limits a major life activity, which is the definition of an actual disability under the ADA and many state and local statutes, which mirror the ADA definition.9
Long COVID, however, is a different story. In July of 2021, both the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) issued guidance that long COVID can be a medical impairment under the ADA and, depending upon its impact and effects, rise to the level of a disability. DOJ and HHS reached this conclusion because long COVID can cause severe damage to a person’s lungs, heart, and kidneys, as well as neurological and circulatory systems.10 The federal agencies also recognized that memory lapses and brain fog can substantially limit such major life activities as brain function, concentrating, and thinking. In 2022, the EEOC issued similar guidance, advising that long COVID may be a disability for individuals infected with COVID-19 that causes ongoing intestinal pain, headaches, fatigue, heart palpitations, and shortness of breath.11
Lawsuits alleging that an employer discriminated against an employee suffering from long COVID are starting to be filed, but to date, there have been no definitive court decisions holding that long COVID constitutes an ADA disability.12 Nonetheless, courts have allowed claims that an employer terminated or failed to accommodate employees suffering from the long-term ill effects of COVID-19 to continue past the initial dismissal stage.13 Accordingly, in order to avoid being the subject of an ADA lawsuit, employers are well advised to attempt to accommodate those employees who have been diagnosed by a medical provider as having symptoms of long COVID.
Examples of reasonable accommodation found in the statute and EEOC regulations that may be applicable to long COVID14 include:
The most common type of accommodation that COVID-19 sufferers have been seeking is to continue to telework, particularly as an accommodation for those experiencing fatigue of various types.17 In the past, courts generally did not require work at home as a reasonable accommodation, especially where it would be an exception to an employer’s existing policies or practices.18 But, this may be changing due to the pandemic. The EEOC’s Guidance on COVID-19 and the ADA says that while a telework arrangement allowed during COVID-19 pandemic is not necessarily required as accommodation for disabled employees post-pandemic, it may be. The answer will turn on an individualized fact-specific determination, and the success or failure of telework during the pandemic may be considered as part of the analysis.19
In order to deal with the impact of long COVID, many employees may need to take time off for doctor’s visits as well as to rest before returning to the workplace. For many individuals, being diagnosed with long COVID will constitute a serious health condition under the FMLA, since the definition encompasses an illness that involves incapacity of more than three calendar days and continuing treatment by a healthcare provider.20 Hence, where an employee experiencing the symptoms of long COVID is unable to perform his or her job for more than three days, that employee likely will be entitled to take up to 12 weeks of unpaid FMLA leave.21 Because many states and local governments have enacted paid leave laws, it also is likely that long COVID sufferers will be entitled to take advantage of those laws as well.
Additionally, where an employer is covered by both federal and state leave laws and the ADA, an employee may be entitled to more than the 12-week FMLA period as a reasonable accommodation under disability law.22 How much longer will depend upon the nature of the specific factual situation. The EEOC has taken the position that unpaid leave under the ADA may last until it would constitute an undue hardship for the employer, which the employer would need to justify.23 However, at least some courts have recognized that a multi-month leave of absence does not constitute a reasonable accommodation under the statute.24 Indefinite leave also is not required.25
The challenge of COVID-19 is likely to continue into the foreseeable future as we deal with the effects of long COVID and the continued disruption not only in the workplace, but in our lives generally. Accordingly, it is important for employers to keep abreast of the developing medical science concerning long COVID and to take those employees diagnosed with the medical condition seriously.
As is generally the case in matters dealing with employment, it always is prudent for employers to attempt to assist an employee in performing that employee’s job functions. Adhering to rigid work schedules or job requirements can get employers into trouble. Employers need to remain as flexible as possible in dealing with the challenges of the new normal and to make sure that they can present their best face to a judge or to a jury.
Because the law still is evolving with respect to the legal protections for persons diagnosed with long COVID and the requirements placed upon employers to accommodate the malady, employment counsel have an enhanced obligation to ensure that their clients are appropriately dealing with the situation. Missteps can result in an EEOC charge or a lawsuit. Taking preventive steps is the best way to deal with medical issues arising from the COVID-19 pandemic as well as the legal issues that result therefrom.
Jonathan R. Mook is a partner at DiMuroGinsberg PC. He is the author of two treatises on the Americans with Disabilities Act, published by LexisNexis, Americans with Disabilities Act: Employee Rights and Employer Obligations and Americans with Disabilities Act: Public Accommodations and Commercial Facilities.
To find this article in Lexis Practice Advisor, follow this research path:
RESEARCH PATH: Labor & Employment > Attendance, Leaves, and Disabilities > Articles
Related Analytical/Secondary Content by Jonathan R. Mook, DiMuroGinsberg PC:
For a detailed practice oriented guide that provides, in directly applicable step-by-step form, how to meet the Americans with Disability Act legal requirements that affect employment policies and procedures, see Americans with Disabilities Act: Employee Rights and Employer Obligations
For an extensive analysis of the scope and nature of the obligations that Title III of the Americans with Disabilities Act imposes upon almost every business in the United States, see Americans with Disabilities Act: Public Accommodations and Commercial Facilities
For authoritative, comprehensive coverage of labor and employment law, both at the federal and the state level, from A to Z, see Labor and Employment Law
For an overview of materials on the impact of COVID-19 in a variety of practice areas, including labor and employment, see
> CORONAVIRUS (COVID-19) RESOURCE KIT
> CORONAVIRUS (COVID-19) FEDERAL AND STATE EMPLOYMENT LAW TRACKER
For a summary of employment litigation trends related to COVID-19, see
> COVID-19 WORKPLACE LITIGATION TRENDS
For a checklist to use in evaluating and responding to an employee’s request for a workplace accommodation, see
> ACCOMMODATING A DISABILITY UNDER THE AMERICANS WITH DISABILITIES ACT CHECKLIST
For key issues that private employers should consider when preparing for future influenza, coronavirus, and other pandemic outbreaks, see
> PANDEMIC FLU/INFLUENZA/CORONAVIRUS (COVID-19) PREVENTION, RESPONSE, AND RETURN TO WORK CHECKLIST (BEST PRACTICES FOR EMPLOYERS)
> CORONAVIRUS (COVID-19) RESOURCE KIT: RETURN TO WORK
> LONG COVID-19 AND THE WORKPLACE (ADA ISSUES AND RECENT LITIGATION) PODCAST
1. See Centers for Disease Control and Prevention, Long COVID: Household Pulse Survey (June 22, 2022, updated Jan. 25, 2023), and Centers for Disease Control, Long COVID or Post-COVID Conditions (updated Dec. 16, 2022). 2. M. Taquet, et al., The Lancet, Neurological and Psychiatric Risk Trajectories After SARS-COV-2 (Aug. 17, 2022). 3. Centers for Disease Control and Prevention, Caring for People with Post-COVID Conditions (updated Mar 21, 2022). 4. Ziyad Al-Aly, Benjamin Bowe and Yan Xie, Nature Medicine, Long COVID after breakthrough SARS-CoV-2 infection (Vol. 28, July 2022, 1461-1467). 5. National Institutes of Health, Long COVID (updated Oct. 5, 2022). 6. Katie Bach, The Brookings Institution, New data shows long COVID is keeping as many as 4 million people out of work (Aug. 24, 2022). 7. Family and Medical Leave Act of 1993, Pub. L. No. 103-3, 107 Stat. 6 (Feb. 5, 1993), codified at 29 U.S.C.S. § 2601 et seq. 8. Equal Employment Opportunity Commission, Section N of What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (updated July 12, 2022), (hereinafter, EEOC Guidance). See also Champion v. Mannington Mills, Inc., 538 F.Supp.3d 1344 (M.D. Ga. 2021) (being required to quarantine and miss work for 10 days due to COVID infection not substantially limiting); Payne v. Woods Services, Inc. et al., 520 F.Supp.3d 670 (E.D. Pa. 2021) (same); McCone v. Exela Techs., Inc., 2022 U.S. Dist. LEXIS 45734, *9 (M.D. Fla. Jan. 14, 2022) (“being infected with COVID-19, standing alone, does not meet the ADA’s definitions of disability or impairment.”); Harakal v. Composite Motors, Inc., 2022 U.S. Dist. LEXIS 227917, *4-5 (M.D. Fla. Dec. 19, 2022) (“It would be absurd to hold that any employee who contracted COVID-19 was disabled.”); Baum v. Dunmire Prop. Mgmt., 2022 U.S. Dist. LEXIS 54555, *11 (D. Colo. Mar. 25, 2022) (“plaintiff has failed to plausibly allege that her father’s COVID-19 diagnosis and related respiratory issues constitute a disability under the ADA.”); Worrall v. River Shack, LLC, 2022 U.S. Dist. LEXIS 146077, *8 (N.D. Tex. Aug. 15, 2022) (“[t]he fact that [plaintiff] was instructed to isolate [following a positive COVID-19 test] does not itself suggest that he suffered from a disability.”); Southall v. Ford Motor Co., 2022 U.S. Dist. LEXIS 223045, *9 (S.D. Ohio Dec. 9, 2022) (“but merely alleging a COVID diagnosis without more facts which make plausible that the disease substantially limited one or more of the employee’s major life activities, is not enough to survive a motion to dismiss.”). Cf. Roman v. Hertz Local Edition Corp., et al., 2022 U.S. Dist. LEXIS 88154, *16 (S.D. Cal. May 16, 2022) (employee who contracted mild case of COVID-19 was not disabled under California’s Fair Employment and Housing Act, but recognizing that long COVID “may well fall within FEHA’s definition of disability.”). 9. 42 U.S.C.S. § 12102(1)(A). Even if infection with COVID-19, in and of itself, is not actually disabling by substantially limiting a major life activity, a person still may be protected under the ADA where an employer takes a job action against an individual due to that person’s actual or perceived infection with COVID-19 “whether or not the impairment limits or is perceived to limit a major life activity” as long as the impairment is not “transitory and minor.” Under the statute, “[a] transitory impairment is an impairment with an actual or expected duration of six months or less.” 42 U.S.C.S. § 12102(3). In Matias v. Terrapin House, Inc., 2021 U.S. Dist. LEXIS 176094 (E.D. Pa. Sept. 16, 2021), the district court in denying the defendant’s motion to dismiss, held that “the immediate temporal proximity between [the employee’s] disclosure of her COVID-19 symptoms . . . and her termination raises a strong inference that [the employer] regarded her as disabled.” See also Brown v. Roanoke Rehab. & Healthcare Ctr., 586 F.Supp.3d 1171, 1180 (M.D. Ala. 2022) (plaintiff’s complaint sufficiently alleged that she was regarded as disabled “by alleging that she was discharged shortly after informing her employer that she was continuing to suffer from a severe, symptomatic case of COVID-19.”); Moody v. Mid-Michigan Med. Ctr.-Midland, 2022 U.S. Dist. LEXIS 130822, *13 (E.D. Mich. July 22, 2022) (where complaint alleged that hospital reduced nurses’ hours because it regarded her as having COVID-19, nurse sufficiently alleged an ADA claim); Booth v. GTE Fed. Credit Union, 2021 U.S. Dist. LEXIS 224333 (M.D. Fla. Nov. 20, 2021) (“COVID-19 is not so obviously transitory and minor that [Plaintiff’s] claim must fail as a matter of law.”). Other courts have reached a different conclusion and held that merely alleging that an employer took an adverse job action due to an employee’s actual or perceived COVID-19 infection does not rise to the level of a regarded as disabled claim because “the typical course of COVID-19 does not run for six months” and, therefore, is transitory. Southall, 2022 U.S. Dist. LEXIS 223045, *10. As explained by the Southall court, “simply alleging that an employer perceived an employee as disabled because he tested positive for COVID, without more, is not enough to make plausible that the employer regarded the employee as disabled.” Id., *9. See also Worrall, 2022 U.S. Dist. LEXIS 146077, *11 (because plaintiff failed to “allege that his COVID illness lasted or was expected to last longer than the fourteen days that he was told to quarantine for” and that “his transitory illness was non-minor,” plaintiff failed to show that employer regarded him as disabled.); Rice v. Guardian Asset Mgmt., Inc., 2021 U.S. Dist. LEXIS 184868 (N.D. Ala. Aug. 19, 2021) (“While [Plaintiff] may disagree with [Defendant’s] decision to send her home to quarantine and to request a negative [COVID-19] test before she could return, following public health protocols does not establish that [Defendant] regarded her as disabled.”) 10. U.S. Department of Justice, DOJ and HHS Guidance on ‘Long COVID’ and Disability Rights Under the ADA, Section 504, and Section 1557 (July 26, 2021). See also U.S. Department of Health Human Services, Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557 (July 26, 2021). For a further discussion of the DOJ and HHS Joint Guidance, see Jonathan. Mook, Is Long COVID an ADA Disability: The Jury Is Still Out, 21-10 Bender’s Lab. & Empl. Bull. 01 (Oct. 2021). 11. EEOC Guidance, supra n. 8. 12. See Hurtado v. SAP Amer. Inc. C.A. No. 1:22-cv-02972 (N.D. Ga., filed July 27, 2022) (plaintiff who was left disabled from a debilitating COVID-19 infection alleges employer violated ADA by holding him to a higher standard and reassigning any of his clients to co-workers); Viera v. Scotts Co., LLC, et al., CA. No. 5:22-cv-00327 (M.D. Ga., filed Sept. 8, 2022) (plaintiff with chronic respiratory condition due to COVID-19 alleges employer terminated health benefits and constructively terminated her after she asked to work from home). 13. See, e.g., Roanoke Rehab., 586 F.Supp.3d 1171 (plaintiff sufficiently alleged actual and regarded as disability where plaintiff was fired while in COVID-19 quarantine and thereafter continued to suffer from severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes). 14. See 42 U.S.C.S. § 12111(9); 29 C.F.R. § 1630.2(0)(2). 15. See Solomon v. Vilsack, 763 F.3d 1 (D.C. Cir. 2014) (budget analyst with depression whose flexible schedule was revoked by supervisor created jury issue as to whether request was a reasonable accommodation). 16. Kassa v. Synovus Financial Corp., 800 Fed. Appx. 804 (11th Cir. 2020) (allowing an employee suffering from bipolar disorder and intermittent explosive disorder to take short breaks when he was frustrated could be a reasonable accommodation, especially where such accommodations had been provided by the employee’s prior supervisor); EEOC v. Treehouse Foods, Inc., C.A. No. 1:21-cv-0204 (N.D. Ga. January, 2021) (EEOC claims employer violated ADA by denying intermittent unpaid leave to employee for treatment and hospitalization due to COPD, chronic bronchitis, chronic bleeding ulcer, and high blood pressure). 17. See, e.g., Burbach v. Arconic, 561 S.Supp.3d 508 (W.D. Pa. Sept. 22, 2021) (denying motion to dismiss former attorney’s suit that joint employers violated FMLA and ADA by not informing him of FMLA leave to recover from COVID-19 and revoking approval of telework from Slovenia where he could obtain treatment and wife’s family could assist with childcare). See also Lin v. CGIT Sys., 2021 U.S. Dist. LEXIS 179695 (D. Mass. Sept. 21, 2021) (denying motion to dismiss disability discrimination claim of employee with history of high blood pressure and who lived with elderly mother, who was fired after denial of telework request due to medical concerns as to the impact of contracting COVID-19) (decided under Massachusetts state law). But see Thomas v. Bridgeport Bd. of Educ., 2022 U.S. Dist. LEXIS 151864 (D. Conn. Aug. 24, 2022) (dismissing teacher’s claim that school board violated ADA by rejecting request to teach remotely until COVID vaccine was available because in-person teaching was an essential function of job). 18. See EEOC v. Ford Motor Co., 782 F.3d 753, 761 (6th Cir. 2015) (en banc) (“regularly attending work onsite is essential to most jobs, especially the interactive ones” because “most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.”); Credeur v. State of Louisiana, 860 F.3d 785 (5th Cir. 2017) (state attorney general not obligated to allow litigation attorney to continue to telecommute as a reasonable accommodation because attorneys engaged in an interactive and team oriented approach that could not be accomplished working from home); Yochim v. Carson, 935 F.3d 586 (7th Cir. 2019) (employer not obligated to allow legal department employee to telework as a reasonable accommodation because employee’s job responsibilities and job description required teamwork, collaboration, and cross training); Brunckhorst v. City of Oak Park Heights, 914 F.3d 1177 (8th Cir. 2019) (employer not obligated to provide work at home as a reasonable accommodation to senior accountant because position required performance of a number of functions that could not be performed at home, including interacting with the public). 19. Section D.16 of EEOC Guidance, supra, n. 8. 20. See 29 U.S.C.S. § 2611(11); 29 C.F.R. § 825.114. 21. 29 C.F.R. § 825.200. 22. See Blanchet v. Charter Communs., LLC, 27 F.4th 1221,(6th Cir. 2022) (holding that an employer violated the ADA by failing to provide an employee suffering from postpartum depression with additional leave as a reasonable accommodation where, upon exhausting her FMLA leave, the employee requested an additional 60 days of leave, which the employer denied). The failure of an employer to provide additional leave under the ADA has been the subject of litigation involving an employee suffering the ill effects of COVID-19. See Brittany Hope v. Amazon.com Services LLC, et al., C.A. 1:22-cv-03537 (S.D.N.Y., filed May 2, 2022) (plaintiff alleged Amazon terminated her for job abandonment after she took medical leave due to severe health issues she suffered after a COVID-19 infection). 23. Equal Employment Opportunity Commission, Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016) (“an employer can deny requests for leave when it can show that providing the accommodation would impose an undue hardship on its operations or finances.”) 24. See Severson v. Heartland Woodcraft, 872 F.3d 476 (7th Cir. 2017); Lipp v. Cargill Meat Solutions Corp., 911 F.3d 537 (8th Cir. 2018) (taking additional leave following the employee’s nine months of unplanned absences was not a reasonable accommodation under the ADA). 25. See Henry v. United Bank, 686 F.3d 50, 60 (1st Cir. 2012) (employee’s request for open ended additional leave following exhaustion of FMLA leave was not a reasonable accommodation); Silva v. City of Hidalgo, 575 Fed. Appx. 419 (5th Cir. 2014) (plaintiff’s claim that her employer “was under an obligation to keep her position open for an unspecified amount of time until she was able to return (which turned out to be at least five months after her FMLA leave expired) . . . simply cannot be squared with the statute’s entitlement to a ‘reasonable accommodation.’”).
This article appeared in Bender’s Labor & Employment Bulletin, volume 23, Issue No.2. An earlier version appeared in the Mid-Atlantic Employment Law Letter, 2023 volume 1, Business and Learning Resources, Brentwood, Tenn.