In September, the EEOC announced that it recognizes that long COVID may be a disability under the Americans with Disabilities Act (ADA) and Section 501 of the Rehabilitation Act in certain circumstances. The EEOC agreed with the analysis of “long COVID” by the Department of Health and Human Services (HHS) and Department of Justice (DOJ) in their “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557.” The EEOC will release technical assistance about COVID-19 and ADA “disability” in the employment context in the coming weeks. On August 2, 2021, the White House, HHS, Department of Education, and Department of Labor also hosted "A Conversation about Long COVID," reviewing and providing support to the HHS and DOJ guidance.
Brief Summary of HHS and DOJ Guidance
According to the guidance, long COVID is a disability under the:
- ADA (Titles II and III at 42 U.S.C. §§ 12101-12103, and 12131-12189);
- Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794); and
- Section 1557 of the Patient Protection and Affordable Care Act (42 U.S.C. § 18116).
Note: Read more on the Office of Disability Employment Policy’s JAN website about long COVID and the ADA.
A person with a disability is someone:
- With a physical or mental impairment that substantially limits one or more of their major life activities; or
- With a record of such an impairment; or
- Who is regarded as having such an impairment.
A person with long COVID has a disability if their condition or any of its symptoms is a physical or mental impairment that substantially limits one or more major life activities. A physical impairment includes any physiological disorder or condition affecting one or more body systems, including, among others, the neurological, respiratory, cardiovascular, and circulatory systems. A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness. Long COVID is a physiological condition affecting one or more body systems. For example, some people with long COVID experience:
- Lung damage
- Heart damage, including inflammation of the heart muscle
- Kidney damage
- Neurological damage
- Damage to the circulatory system resulting in poor blood flow
- Lingering emotional illness and other mental health conditions
Accordingly, long COVID is a physical or mental impairment under the ADA, Section 504, and Section 1557.
Long COVID can substantially limit one or more major life activities, which include a wide range of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working. It also includes the operation of a major bodily function, such as the functions of the immune system, cardiovascular system, neurological system, circulatory system, or the operation of an organ.
To “substantially limit” is construed broadly under these laws and shouldn’t require extensive analysis. The impairment doesn’t need to prevent or significantly restrict an individual from performing a major life activity, and the limitations don’t need to be severe, permanent, or long-term. Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.
Long COVID can substantially limit a major life activity and when someone with long COVID might be substantially limited in a major life activity are varied, for instance:
- 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.
However, long COVID isn’t always a disability. It requires an individualized assessment to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity.
People whose long COVID qualifies as a disability are entitled to the same rights and protections from discrimination as any other person with a disability under the ADA, Section 504, and Section 1557 (full and equal opportunities to participate in and enjoy all aspects of civic and commercial life).
