On July 26th, the 31st anniversary of the Americans with Disabilities Act (ADA), President Joe Biden announced that individuals coping with long-term symptoms from COVID-19 may be eligible for disability protections under the ADA and the Family and Medical Leave Act (FMLA), so what does this mean for employers?
Health experts are still learning about “long-COVID”, officially dubbed Post-Acute Sequelae of Sars-Cov-2 Infection, and the medical community’s understanding of the condition is continuing to evolve as more information comes in. The CDC website lists the following as the most common post-COVID symptoms:
- Difficulty breathing or shortness of breath
- Tiredness or fatigue
- Symptoms that get worse after physical or mental activities
- Difficulty thinking or concentrating (sometimes referred to as “brain fog”)
- Chest or stomach pain
- Fast-beating or pounding heart (also known as heart palpitations)
- Joint or muscle pain
- Pins-and-needles feeling
- Sleep problems
- Dizziness on standing (lightheadedness)
- Mood changes
- Change in smell or taste
- Changes in period cycles
In his July 26th announcement, Biden said that “many Americans who seemingly recover from the virus still face lingering challenges like breathing problems, brain fog, chronic pain and fatigue. These conditions can sometimes…rise to the level of a disability.”
Employers are advised to treat all requests for accommodation or leave involving long-term COVID-19 symptoms in the same manner they would for any other non-obvious impairment or disability.
If an employee is seeking FMLA leave – either intermittent or as an interval of time, employers should take the following steps to decide how to proceed:
- Determine if the employer covered by FMLA
- If so, determine if the employee qualifies for FMLA. Consider that the employer must have 50 employees within 75 miles of the employee’s worksite, and the employee must have been employed at least 12 months and must have worked a minimum of 1250 hours in the past 12 months.
- Provide the employee with a Notice of Eligibility and Rights & Responsibilities, Form WH-381, even if they are not eligible for FMLA leave.
- If the employee is determined to be eligible for FMLA leave, the employer should request healthcare certification showing that the claimed disability qualifies the employee for FMLA protection.
- Employees seeking leave due to their own symptoms should be provided with Form WH-380-E, and employees seeking leave to care for a family member should be provided with form WH-380-F.
- A Designation Notice, Form WH-382, should be used to either denominate the leave as FMLA leave or to serve as notice to the employee that the leave is unapproved or additional information is required.
If the individual is seeking ADA Accommodations for long-haul COVID-19 symptoms, the employer should consult with the individual to determine what their exact limitations are and what accommodations are being sought. Keep in mind that the ADA requires the employer to make reasonable accommodations for employees, as well as applicants for employment, who have disabilities.
The ADA does not provide a checklist of conditions that are covered, so instead the employer will need to conduct an individualized assessment to determine if the person has a disability as defined by the ADA. In this context a disability is defined as any impairment that substantially limits major life functions.
Guidance issued by the Department of Justice (DOJ) and Health and Human Services (HHS) on July 26th stated that the phrase “substantially limits” should be interpreted broadly and should not require in-depth analysis.
The employer should then request the individual to have their healthcare provider submit written confirmation of:
- The extent that a disability will substantially limit the individual’s major life functions, including the nature of the disability, its severity, and the anticipated duration of the disability.
- Their assessment of the individual’s ability to perform the essential functions of the position, with or without reasonable accommodation.
- What accommodations the provider believes should be provided that would allow the individual to perform the essential functions of the position safely.
If it becomes clear that the individual does have a disability, the employer should continue to engage with the individual to determine appropriate accommodations. The individual is not granted the ability to dictate which accommodations are provided under the ADA, but it is in the best interest of all parties that they reach an agreement on this subject.
Employers should also keep in mind that reasonable accommodations are not required under the ADA if they would cause an undue hardship on the business, and that long-term effects from COVID-19 don’t always qualify as a disability under the ADA.
It is important employers fully understand the scope of the laws’ coverage in order to be prepared to handle any potential situation. No matter the outcome, employers should always carefully document every step throughout this process and be sure to communicate clearly with the individual seeking accommodations.