The U.S. Department of Health and Human Services and the U.S. Department of Justice recently released joint guidance (the “Guidance”) confirming that so-called “Long COVID” may be a disability under the Americans with Disabilities Act, the Rehabilitation Act of 1973, and the Patient Protection and Affordable Care Act.
Long COVID occurs when a person continues to experience symptoms (e.g., fatigue, brain fog, chest pain, depression or anxiety) weeks or even months after initially contracting COVID-19. According to the Centers for Disease Control and Prevention, these symptoms can worsen with physical or mental activity.
The Guidance makes clear that Long COVID may be considered a disability under these statutes, if the person’s condition, or any of its symptoms, is a “physical or mental” impairment (e.g., lung damage or lingering emotional illness) that “substantially limits” one or more major life activities (e.g., caring for oneself or working).
The Guidance provides the following three examples of Long COVID symptoms which may substantially limit a major life activity:
- A person with Long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
- A person with Long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
- A person with Long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.
According to the Guidance, people whose Long COVID qualifies as a disability under these statutes are entitled to the same protections from discrimination as any other person with a qualifying disability.
The goal of these anti-discrimination laws is to ensure full and equal opportunity for disabled individuals to participate in and enjoy all aspects of civic and commercial life.
The Guidance means that businesses, including employers, may need to make reasonable accommodations to its practices and general requirements for a person’s limitations from Long COVID.
Whether a person’s Long COVID condition substantially limits a major life activity is analyzed on a case-by-case basis.
While the Guidance addresses only federal disability statutes, it is anticipated that Wisconsin’s disability statutes would be similarly interpreted.
If you have any questions regarding the Guidance or how Long COVID may impact your business, contact your FOS attorney.