Employees suffering from 'long COVID' may have ADA protection

According to the Centers for Disease Control and Prevention (CDC), some individuals who were infected with the COVID-19 virus, even if their cases were asymptomatic, report experiencing a wide range of symptoms weeks or months later, a condition referred to as "long COVID." The Office for Civil Rights of the Department of Health and Human Services (HHS) and the Civil Rights Division of the Department of Justice (DOJ) have collaborated to develop guidance about whether individuals suffering from long COVID are considered to have a disability entitling them to protection under Titles II and III of the Americans with Disabilities Act (ADA) (which apply to governments and public accommodations), the Rehabilitation Act, and the Patient Protection and Affordable Care Act (ACA). While the guidance isn't squarely applicable under Title I of the ADA, which governs private employers, the analysis is instructive.

Determining disability status

Long COVID symptoms include tiredness or fatigue, "brain fog," cough, chest or stomach pain, headache, pins-and-needles feelings, changes in smell or taste, and sleep problems, among others.

To analyze whether long COVID is considered a disability, the departments looked to the definition of disability found in 42 U.S.C. § 12102: "a physical or mental impairment that substantially limits one or more major life activities of such individual, a record of such an impairment, or being regarded as having such an impairment."