Reasonable Accommodations for Long-Term COVID-19 Symptoms Under the ADA

Photo by Daan Stevens on Unsplash

Rachel Harp, Associate Member, University of Cincinnati Law Review

I. Introduction

As the COVID-19 pandemic rages across the United States, concerns about long-term complications of coronavirus infection continue to grow. Some individuals who have recovered from the major COVID-19 symptoms and contamination period continue to experience “brain fog,” heart palpitations, fatigue, or other coronavirus-related issues.[1] The long-term complications of COVID-19 infection (sometimes referred to as “long COVID-19”) are yet to be fully explored, and the severity of lingering symptoms varies in previously infected individuals.[2] Many who have had COVID-19 may not experience any lasting symptoms or be asymptomatic entirely.[3]

This article explores these long-term coronavirus symptoms under the framework of the Americans with Disabilities Act (“ADA”) to determine whether these complications are entitled to protection from discrimination and reasonable accommodations at work.[4] Section II of this article provides background on long COVID-19 and the ADA.[5] Section III looks at long-term coronavirus complications in the context of the ADA and discusses possible reasonable accommodations. Section IV discusses the importance of courts recognizing modern and flexible reasonable accommodations through the ADA.

II. Background

Part A of this section will elaborate on some COVID-19 long-term complications that have been identified. Part B discusses how the ADA defines “disability,” what reasonable accommodations may be, and possible employer defenses to ADA claims

A. COVID-19

Most individuals with COVID-19 recover and return to normal health.[6] Some COVID-19 patients, however, have symptoms that can last for weeks or months after “recovery,” whether or not the individual was hospitalized.[7] The severity and intermittency of these lasting symptoms varies from person to person.[8] Common lasting symptoms are those associated with a mild coronavirus case, including fatigue, shortness of breath, cough, joint pain, and/or chest pain.[9] More serious long-term symptoms might include difficulty thinking and concentrating (“brain fog”), depression, muscle pain, intermittent fever, and heart palpitations.[10] The most serious long-term complications of COVID-19 impact organ systems.[11] These are less common but involve problems with the cardiovascular system, neurological system, renal system, and the respiratory system.[12] There have also been serious long-lasting psychological impacts, including depression, anxiety, and changes in mood.[13]

Long-term coronavirus complications continue to be studied and explored.[14] It is unclear what causes persistent symptoms or how long the symptoms may last.[15] While persistent symptoms can impact younger, otherwise healthy individuals, they are most common in older individuals and individuals with serious underlying medical conditions.[16] 

B. Americans with Disabilities Act[17]

To demonstrate employment discrimination under the ADA, an individual must (1) meet the definition of a disability, (2) be otherwise qualified to carry out the fundamental requirements of a job or program with or without reasonable accommodation, (3) prove discrimination, and (3) have been discriminated against by a covered entity.[18] To have a qualifying disability, the individual must (1) have a physical or mental impairment that substantially limits one or more major life activities, (2) have record of such impairment, or (3) be regarded as having such impairment.[19] “Major life functions” include organ system functionality, caring for oneself, lifting, breathing, eating, concentrating, thinking, working, and more.[20]

The 2008 amendments to the ADA emphasize that the inquiry into whether the individual actually has a disability should be minimal, and that courts should instead focus on the alleged discrimination.[21] Discrimination can be shown through direct discriminatory acts or policies that have a disproportionate negative impact on those with disabilities.[22] Courts look to see if discriminatory policies are rationally related to a legitimate government purpose.[23]

Individuals who qualify for coverage under the ADA are entitled to reasonable accommodations from covered entities.[24] Covered entities include private employers with 15 or more employees and state and local governments.[25] Reasonable accommodations might be working from home, flexible scheduling, leaves of absence, or other solutions discussed by both the entity and the individual.[26]

An entity does not have to implement a reasonable accommodation if it would pose an “undue burden,” such as because of financial constraints.[27] The entity has the burden of showing that an accommodation is unreasonable.[28] Covered entities might also be able to show that an individual asserting a disability under the “regarded as” prong only has a “transient” disability of six months or less that does not have to be accommodated.[29] Additionally, covered entities can assert the “direct threat” defense, saying that the employee is a “direct threat” to themselves or others so firing the employee or not accommodating them was not a discriminatory ADA violation.[30]

III. Discussion

Part A of this section considers “long COVID-19” in the ADA framework.[31] Part B examines shifting workplace norms and discusses reasonable accommodation possibilities for employees with lingering COVID-19 symptoms.

Long-term COVID-19 symptoms likely qualify as a disability under the first prong of the ADA because nearly all lingering symptoms substantially limit one or more major life activities.[32] Employers and other covered entities should respond to these issues on an individualized basis, and courts should recognize flexible, creative, and modern reasonable accommodations.[33] Some of these accommodations might include working from home, extended time to complete tasks, leaves of absence, and others.[34]

A. Long COVD-19 as a Disability

Long COVID-19 symptoms substantially limit one or more major life activities and should be considered a disability under the first prong of the ADA.[35] The most serious complications involving organ systems most easily fit the ADA framework, as organ system functionality is a major life activity.[36] The milder symptoms of brain fog, intermittent fever, heart palpitations, fatigue, joint pain, and others also substantially limit various major life functions including breathing, concentrating, performing manual tasks, and working.[37] Because long-term COVID-19 symptoms substantially limit a variety of major life activities, individuals experiencing long COVID-19 should be able to show that they have a disability under the first prong of the ADA.[38]

B. Reasonable Accommodations

The Equal Employment Opportunity Commission (“EEOC”) has stated that employees with disabilities and other individuals who are at high risk for COVID-19 infection are entitled to reasonable accommodations at work under the ADA.[39] Working from home is the most commonly requested and used accommodation, though the employer and employee may use or create other reasonable accommodations.[40] Similar guidance can be used for employees long-term COVID-19 symptoms.

Returning to work will look different for every field, and there will likely be no return to “normal” pre-pandemic workplaces. General strategies to combat disease spread are being implemented in various fields of work, including increased telework, improved cleaning and disinfecting, mask requirements, and others.[41] The Centers for Disease Control and Prevention (“CDC”) has even created a webpage with guidance for various industries.[42] These general accommodations will be useful for all employees and particularly those with long COVID-19; however, individualized accommodations might still be necessary.

Additional accommodations for those with long-term COVID-19 symptoms might include extended time to complete tasks due to brain fog and other issues impacting concentration and thinking, flexible scheduling for intermittent fevers and other sporadic symptoms, or potentially a leave of absence if the symptoms continue to progress in severity and duration. Reasonable accommodations should be discussed collaboratively with the employer and the qualifying employee, as each job and each individual will have different needs.[43] Employers might be able to avoid accommodating the covered individual by asserting the “direct threat” to others defense or by showing that the accommodations pose an undue hardship.[44]

The widespread impact of COVID-19 and the 2008 ADA amendments make flexible court approaches imperative.[45] Courts should not conduct an extensive analysis into whether individuals have a disability under the ADA and instead follow congressional intent of providing broad coverage.[46] Categorizing “long COVID-19” as a disability under the ADA will not open floodgates of litigation. Instead, such a recognition will put employers on notice, allowing them to anticipate long-term COVID-19 symptoms, find creative reasonable accommodations, and avoid litigation down the road. Further, lingering COVID-19 symptoms should not be burdensome to accommodate. Most employers have already restructured workplace practices in light of the pandemic, and even those who have been working in person or have returned to in person work allow for flexible and hybrid scheduling, extended deadlines, and more.[47]

IV. Conclusion

Litigation surrounding COVID-19 health and employment issues has already begun and will continue to grow. Courts should adopt a flexible approach to ADA disability inquiries per the 2008 amendments to recognize long-term COVID-19 symptoms as a disability.[48] Some reasonable accommodations for “long COVID-19” might include working from home, extended time to complete tasks, or leaves of absence depending on the employer, employee, and symptom severity.[49] Courts should recognize working from home as a reasonable accommodation for most jobs in light of the changing workplace structure induced by the pandemic and modern technology.[50] Litigation can be avoided by employers and courts adopting flexible ADA reasonable accommodations approaches.

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[1] Long-Term Effects of COVID-19, Center for Disease Control and Prevention (CDC) (Nov. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects.html.

[2] COVID-19 (coronavirus): Long-term effects, Mayo Clinic (Nov. 17, 2020), https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/coronavirus-long-term-effects/art-20490351.

[3] Long-Term Effects of COVID-19, supra note 1.

[4] 42 U.S.C. §§ 12101-12213 (2020).

[5] COVID-19 (coronavirus): Long-term effects, supra note 2.

[6] Long-Term Effects of COVID-19, supra note 1.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] COVID-19 (coronavirus): Long-term effects, supra note 2.

[15] Id.

[16] Id.

[17] 42 U.S.C. §§ 12101-12213 (2020).

[18] 42 U.S.C. §§ 12102(1) and 12111(8).

[19] 42 U.S.C. § 12102(1).

[20] 29 C.F.R. § 1630.2(i)(1) (2020).

[21] P.L. 110-325(2)(b)(5) (2008) (stating that the purpose of the 2008 amendments is to focus the courts’ analyses on whether a covered entity complied with the ADA and that whether an individual has an impairment should not be an extensive analysis).

[22] 42 U.S.C. §§ 12112(b); Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003) (“Both disparate-treatment and disparate-impact claims are cognizable under the ADA.”).

[23] City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) (establishing the use of rational basis review for analyzing disability-based discrimination). See also Heller v. Doe, 509 U.S. 312 (1993) (using rational basis review in analyzing statutory classifications for mental impairments).

[24] See generally 42 U.S.C. §§ 12101-12213.

[25] 42 U.S.C. §§ 12111-12165; 29 C.F.R. § 1630.2(b) and (e).

[26] 29 C.F.R. § 1630.2(o). See also Vande Zande v. Wisconsin Dept. of Admin.,44 F.3d 538, 544 (7th Cir. 1995) (holding that working from home was not a reasonable accommodation because teamwork is an essential job function but noting that “[t]his will no doubt change as communications technology advances”); U.S. Equal Emp’t Opportunity Cmm’n, EEOC-NVTA-2009-3, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (2009) (noting that telework is a reasonable accommodation).

[27] 29 C.F.R. § 1630.2(p); Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138-139 (2d Cir. 1995). See also 29 C.F.R. § 1613.704(c) (2020).

[28] Borkowski, 63 F.3d at 138.

[29] 29 C.F.R. § 1630.15(f) (2020); 29 C.F.R. § 1630.2(j)(1)(ix).

[30] 29 C.F.R. § 1630.15(b)(2) and 29 C.F.R. § 1630.2(r). See e.g. Mauro v. Borgess Med. Ctr., 137 F.3d 398, 402 (6th Cir. 1998) (analyzing whether an HIV-positive operating room technician was a direct threat to patients); Chandler v. City of Dall., 2 F.3d 1385, 1395 (5th Cir. 1993) (analyzing whether an individual with diabetes and an individual with minor, uncorrectable vision impairments would pose direct threats to others as city drivers).

[31] COVID-19 (coronavirus): Long-term effects, supra note 2.

[32] Id.; Long-Term Effects of COVID-19, supra note 1; 42 U.S.C. §§ 12102(1) and 12111(8) (2020); 29 C.F.R. § 1630.2(i)(1).

[33] See Humphrey v. Memorial Hosp. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001) (“Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive with the employee to identify and implement appropriate reasonable accommodations.”); Ralph v. Lucent Tech., 135 F.3d 166, 172 (1st Cir. 1998)(the duty to accommodate is a “continuing” duty, “not exhausted by one effort”).

[34] 29 C.F.R. § 1630.2(o).

[35] Long-Term Effects of COVID-19, supra note 1; COVID-19 (coronavirus): Long-term effects, supra note 2; 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(i)(1).

[36] Long-Term Effects of COVID-19, supra note 1; 29 C.F.R. § 1630.2(i)(1).

[37] Long-Term Effects of COVID-19, supra note 1; 29 C.F.R. § 1630.2(i)(1).

[38] 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(i)(1).

[39] U.S. Equal Emp’t Opportunity Cmm’n, EEOC-NVTA-2009-3, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (2009); Tracie DeFreitas, The ADA and Managing Reasonable Accommodation Requests from Employees with Disabilities in Response to COVID-19, Job Accommodation Network (JAN) (March 2020), https://askjan.org/blogs/jan/2020/03/the-ada-and-managing-reasonable-accommodation-requests-from-employees-with-disabilities-in-response-to-covid-19.cfm.

[40] DeFreitas, supra note 40. See also Humphrey, 239 F.3d at 1137.

[41] COVID-19: For Specific Indus. and Occupations, Centers for Disease Control and Prevention (CDC) (Feb. 8, 2021), https://www.cdc.gov/coronavirus/2019-ncov/community/workplaces-businesses/specific-industries.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcommunity%2Fworker-safety-support%2Findex.html#manufacturing-industrial.

[42] Id.

[43] Humphrey, 239 F.3d at 1137; Ralph, 135 F.3d at 172.

[44] 29 C.F.R. § 1630.15(b)(2) (2020); 29 C.F.R. § 1630.2(p) and (r) (2020).

[45] P.L. 110-325(2)(b)(5) (2008). See generally COVID Data Tracker Weekly Review, Centers for Disease Control and Prevention (CDC) (Feb. 19, 2021), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html.

[46] Jenkins v. Nat’l Bd. of Med. Examiners, 2009 U.S. App. LEXIS 2660, 8-9 (6th Cir. 2009) (remanding a post-amendment ADA case instructing the district court to conduct less inquiry into whether the plaintiff had a disability in light of the congressional intent for broad coverage under the amendments).

[47] See generally U.S. Equal Emp’t Opportunity Cmm’n, EEOC-NVTA-2009-3, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (2009) (discussing reasonable accommodations for the influenza epidemic, with 2020 COVID-19 updates added). See also Chevron U.S.A. v. Echanzabal,536 U.S. 73 (2002) (establishing judicial deference for agencies’ statutory interpretations).

[48] P.L. 110-325(2)(b)(5) (stating that the purpose of the 2008 amendments is to focus the courts’ analyses on whether a covered entity complied with the ADA and that whether an individual has an impairment should not be an extensive analysis).

[49] COVID-19 (coronavirus): Long-term effects, supra note 2; 29 C.F.R. § 1630.2(o) (2020).

[50] Vande Zande, 44 F.3d at 544 (holding that working from home was not a reasonable accommodation because teamwork is an essential job function but noting that “[t]his will no doubt change as communications technology advances”). U.S. Equal Emp’t Opportunity Cmm’n, EEOC-NVTA-2009-3, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (2009) (noting that telework is a reasonable accommodation).