Magazine Extra: Long COVID and ADA

In the beginning of the pandemic, employers struggled to determine whether workers who contracted COVID-19 qualified for disability protections under the Americans with Disabilities Act (ADA). More than two years later, employers have another issue to consider—whether employees who experience ongoing complications from COVID-19, or long COVID, qualify for ADA accommodations.

COVID long-haulers experience prolonged symptoms that may interfere with their ability to perform the essential functions of their job. Estimates on the percentage of people who will develop long COVID vary from about 10% to 30% of people who contract and recover from COVID-19. Employers may be dealing with long COVID for years to come as new COVID variants emerge and employees continue to contract the virus.

ADA Definition of Disability

Under ADA, an individual has a disability when they have a physical or mental impairment that substantially limits a major life activity, compared with the general population. According to the Equal Opportunity Employment Commission (EEOC), in general, a person experiencing COVID-19 who is asymptomatic or experiences “mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA.” However, according to the Centers for Disease Control and Prevention (CDC), people with long COVID may experience a range of new or ongoing symptoms that can last weeks or months after they are infected with the virus. These long-hauler symptoms may worsen with physical or mental activity. The CDC provides a list of long-hauler symptoms including fatigue, brain fog, headaches and difficulty breathing

The Department of Health and Human Services (HHS) also has said that long COVID can be a disability under Section 504 of the Rehabilitation Act of 1973 and Section 1557 of the Affordable Care Act (ACA).

This condition may lead to the employees requiring accommodations under ADA or seeking coverage from a long-term disability plan.

Qualifying for an ADA Accommodation

An individual who experiences more severe and/or long-lasting symptoms from COVID-19 may qualify for an accommodation under ADA. But how can an employer determine whether these symptoms interfere with an employee’s ability to perform the essential functions of the job? In other words, when does a COVID long-hauler become eligible for the rights and benefits of ADA?

To begin with, human resources (HR) professionals should engage in the ADA interactive process. The interactive process is simply a cooperative and collaborative case-by-case assessment of the employee’s circumstances and ADA requirements. In general, the employer’s duty to engage in the interactive process includes the following actions.

Do more than remain passive (i.e., simply answering specific questions from an employee is not enough). The employer must engage in an intentional and meaningful conversation with the employee designed to seek information about the employee’s limitations with respect to the essential functions of the job and informing the employee of their rights and obligations.

Take initiative and clarify what accommodation is required. The employee also has a responsibility to participate in the interactive process and be clear and specific about their limitations, provide medical documentation when necessary and work with the employer to identify an appropriate accommodation.

Ensure the process doesn’t break down. Both the employer and the employee have an obligation to do their part. For example, if the employee fails to provide the necessary medical documentation to substantiate the need for the accommodation and the specific limitations, then the process has broken down.

Seek reasonable documentation to establish the need for accommodation (medical documentation may be required, limited religious inquiry may be made). An employer cannot ask for documentation when the disability and the need for reasonable accommodation is obvious or the individual has already provided the employer with sufficient information.

Explain to the employee why provided documentation is insufficient. If the documentation provided by the employee is not sufficient, the employer should provide clear and specific feedback to the employee about the deficiencies along with examples or suggestions for adequate documents.

Explore alternative accommodations when an initially offered accommodation is rejected by an employee. While the employer has no obligation to provide the requested accommodation, employers should work with employees to collaborate and identify an accommodation that works for both parties.

Spend adequate time on the process and document efforts to accommodate. The accommodation process takes time and effort and often requires more than a simple email exchange. Employers should devote the necessary time to work through the process with the employee and allow the employee reasonable time to gather documents and information meaningful to the process. Time requirements will vary by case.

The limitations from COVID-19, like other disabling conditions, do not have to last any specific length of time to be substantially limiting. If the individual experiences episodic symptoms (meaning they come and go), the individual may have an actual disability if it substantially limits a major life activity when active. For example, an individual diagnosed with COVID-19 who experiences ongoing and/or intermittent headaches, dizziness, “brain fog,” and/or breathing issues may be substantially limited as to major bodily functions and/or major life activities. Likewise, an employee with these symptoms may not be able to perform the essential functions of their job without an accommodation. For instance, a server in a restaurant who is short of breath may not be able to work lengthy shifts or carry heavy trays. However, shorter shifts and the provision of a food runner may be an appropriate accommodation based on the employee’s facts and circumstances.

Under ADA, employers cannot consider mitigating measures when determining whether COVID-19 substantially limits a major life activity. This means that the employer must consider the symptoms without the benefit of medications or other measures to lessen their impact on the employee.

Long-Term Disability Benefits

Long-haulers may also be eligible for short- and/or long-term disability insurance wage-replacement benefits. If the employee’s symptoms prevent the employee from working in either their own job or any job, disability insurance may provide some portion of wage replacement benefits for a predetermined period of time. Much like ADA, the disability benefits determination is made on a case-by-case basis and requires an assessment of the employee’s condition. The terms of the insurance policy will dictate whether, based on the employee’s medical circumstances, they are eligible for benefits under the disability insurance program. A detailed discussion of disability plans is beyond the scope of this article.

Employer ADA Reminders

Employers must remember that their ADA obligations begin with their knowledge of an employee who may be experiencing a medical condition that may qualify as a disability under ADA. This means that there are no “magic words” that set an ADA obligation in motion. Employees are not required to specifically request an accommodation. The employer must act as soon as it becomes aware of an employee with a medical condition that may impact the employee’s ability to perform the essential functions of the job.

Employers that approach an employee to discuss their medical condition also must remember that while the medical information is not protected by the Health Insurance Portability and Accountability Act (HIPAA) (ADA medical information in the employment relationship is not considered protected health information (PHI)), it is confidential and protected by ADA. This means that only those who need to know may be made aware of the employee’s medical condition. ADA construes need to know very narrowly. In general, HR may know employee confidential medical information and, under some circumstances, the employee’s manager or supervisor may know.

Consequently, conversations should be held in a private place, and a witness should be present in addition to the employer representative. If it is not possible to have a witness, the person holding the meeting should take detailed notes. Employers may seek medical documentation to substantiate underlying health conditions and the need for an accommodation if the condition is not obvious. Employers must remember to take each employee’s circumstances on a case-by-case basis and assess each situation on its own facts and circumstances. There is no one size fits all under ADA. Very importantly, employers should retain detailed documentation and notes throughout the entire interactive process.

Conclusion

The overall lesson—regardless of the employee’s medical condition, whether it is long COVID, cancer, depression, anxiety or a physical impairment—is that employers should stick to the fundamental principles of ADA firmly rooted in the interactive process.

Carrie B. Cherveny is senior vice president of strategic client solutions and chief compliance officer for the southeast region of HUB International, supporting the organization’s employee benefits division. She is responsible for providing compliance and consulting services on general health plans, the Affordable Care Act (ACA), Employee Retirement Income Security Act (ERISA) and other legal matters. Prior to joining HUB International, she was general counsel and vice president of a national professional employer organization where she designed and developed client compliance strategies and solutions. Cherveny holds bachelor’s and master’s degrees in speech communication from the University of South Florida and a J.D. degree from the Stetson College of Law.

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