Guidance Establishing “Long COVID” as ADA Disability May Preview EEOC Guidance Impacting Employers

COVID-19 Employer Issues, Federal Health Care Reform

The Departments of Justice and Health and Human Services indicated that experiencing COVID symptoms weeks or months after infection may be considered a disability under certain areas of the Americans with Disabilities Act.  While not directly applicable to private sector employers, the move could foreshadow future EEOC guidance.

The guidance impacts Section 504 of the ADA and Section 1557 of the ACA, which deal largely with educational, commercial, and health care settings, and not in ADA's employment context.  However, it does apply to employer health plans and wellness programs to the extent those employer plans and programs receive financial assistance from HHS.  

When long COVID would amount to a disability is unclear:  “An individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity,” the guidance states.  “The CDC and health experts are working to better understand long COVID.”  Under the guidance, long COVID symptoms include headaches, tiredness or fatigue, depression or anxiety, loss of taste or smell, dizziness on standing, and a number of other ailments. 

Outlook:  The joint guidance is likely a strategy to circumvent the current GOP majority on the EEOC, which would normally issue guidance covering both federal and private sector employers.  Democrats are expected to gain a majority on the Commission shortly after July 1, 2022, when Commissioner Janet Dhillon’s term expires, and a broader guidance could result at that time.