Biden administration guidance classifies 'long COVID' as potential disability

On July 26, the Biden administration announced that "long COVID" (a condition in which some people continue to experience coronavirus symptoms long after the acute phase of infection) could be considered a disability under the Americans with Disabilities Act (ADA). Specifically, the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS) released guidance on when long COVID is considered a disability under certain sections of the ADA and similar laws that involve rules for government services and public accommodations (i.e., services companies provide to the public).

Guidance addresses 'long haulers'

The new guidance specifically stated employment issues were outside its scope. Therefore, it didn't address reasonable accommodations or discrimination in employment. Indeed, the Equal Employment Opportunity Commission (EEOC), not the DOJ or HHS, regulates and enforces the ADA's employment sections. The EEOC hasn't released any specific guidance on when long COVID may be a disability or what may be reasonable accommodations.

The DOJ/HHS guidance is likely writing on the wall, however, for how the EEOC may view employers' obligations for such COVID-19 "long haulers." Further, it may be used by employees or their attorneys seeking a workplace accommodation or arguing they were discriminated against. That's especially true because the ADA's employment provisions share the same definition of "disability" with the sections regulating government services and public accommodations.

Overview of long COVID and the guidance