The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990 by President George H.W. Bush. The signing of the ADA was considered the most sweeping affirmation of the rights for the disabled in American history. In honor of the ADA’s 30th Anniversary the Biden Administration has announced the release of a package of guidance and resources designed to assist employers facing new accommodation challenges relating to employees with long COVID.[i]
New guidance issued by the Office of Disability Employment Policy – the U.S. Department of Labor division that maintains the federal Job Accommodation Network (JAN) – suggests that depending on the factual situation faced by the employer, long COVID may qualify as a disability under the ADA entitling qualified employees the right to a reasonable accommodation.
COVID Long-Haulers (an estimated 10% to 30% of those recovering from COVID-19) are those individuals who experience residual chronic effects after a COVID-19 infection including, fatigue, breathing problems, fever, coughing, joint and muscle pain as well as memory problems (brain-fog). The long-haul nature of these symptoms can impact an employee’s ability to work at the same level they did before contracting COVID-19.
It is important that employers train supervisory personnel to recognize the signs that an employee may be experiencing long COVID issues. Red flag behaviors could include a drop in performance, difficulty concentrating, memory problems, or increased absences after returning to work from a COVID-19-related absence.[ii] As with any other disabling condition, employers should be prepared to engage in an interactive process to determine whether an accommodation is necessary and reasonable under the circumstances.
California employers should also be aware that Fair Employment and Housing Act (FEHA) protections for employees who are disabled (or perceived to be disabled) are far broader than federal ADA protections. In other words, if long COVID may qualify as a disability under the ADA, it more than likely qualifies for protection under the FEHA.
Employers should review and update existing reasonable accommodation policies and procedures considering these new guidelines and should consult with legal counsel before refusing an employee’s request for a reasonable accommodation.
Additional Resources on Long COVID