Individuals who contract the COVID-19 virus sometimes develop symptoms that last for months. Such individuals have been called “COVID-19 long haulers”. Safety and Human Resource professionals should be aware that COVID-19 long haulers may very well be covered under provisions of the Americans with Disabilities Act (ADA).
The ADA defines “disability” generally to include:
- A physical or mental impairment that substantially limits one or more major life activities of an individual; or
- A record of such an impairment; or
- Being regarded by the employer as having such an impairment.
Definitions of “substantially limits” and “major life activities” are important to understanding an employer’s obligations under the law and the risk of liability for failure to comply with the law. Generally, the “substantially limits” language has been interpreted by the courts to exclude conditions which result in a very short duration of disability. Thus, the typical case of COVID-19 which lasts a couple of weeks probably is not covered by the ADA. Nevertheless, employers must understand that even if an employee has COVID-19 for two weeks and suffers no permanent lingering effects, the employee may still be regarded as having a disability by the employer. While an employer is not required to reasonably accommodate an employee in this instance, it still must refrain from discriminating against the employee.
The ADA provides examples of “major life activities” to include sleeping, breathing, concentrating, thinking and working. So, an employee with permanent chronic lung disease due to residuals from the COVID-19 virus which interferes with an ability to concentrate, think and work would fall within the protection of the ADA. An employer, therefore, would need to provide a “reasonable accommodation” unless it would constitute an undue hardship. An employer might need to allow the employee to work remotely as a reasonable accommodation depending on the circumstances.
Safety and HR professionals should ensure that job descriptions are accurate and describe the essential functions of the job. The ADA requires the employer to reasonably accommodate an employee with a disability only if the employee can perform the essential functions of the job.
The COVID-19 pandemic continues to affect the workplace. Please contact a member of the Labor and Employment section with questions or further information.