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Long-Haul Covid Discrimination Emerges as Workplace Legal Risk

Aug. 2, 2021, 9:07 AM

Employers face the threat of litigation if their policies discriminate against or fail to reasonably accommodate Covid-19 long-haulers, after the Biden administration said workers with lingering coronavirus symptoms may be protected by federal disability law.

People with long Covid may qualify as having a disability under the Americans with Disability Act because the pandemic-related condition can substantially limit one or more major life activities, the Justice and Health and Human Services departments said last week. More than 34 million Americans have been diagnosed with the coronavirus, and some studies estimate that about 10% of those who contract the virus could become long-haulers.

“The guidance is fairly basic and straightforward, but the fact that the agencies needed to say the civil rights laws aren’t suspended during the pandemic tells you that there was a lot of confusion about that, and uncertainty,” said Jennifer Mathis, the director of legal policy and advocacy at the Bazelon Center for Mental Health Law.

The ADA allows workers to sue their employers over disability discrimination in employment decisions, as well as failures to provide reasonable accommodations that could include telework, leave, or flexible schedules.

Attorneys and disability rights proponents said most ADA workplace litigation risk involving Covid long-haulers will arise when workers and employers engage in an interactive process to determine whether a job modification is reasonable and should be granted. Already during the pandemic, ADA accommodation requests generally have spiked and workers have gone to court when they’ve been denied, lawyers previously told Bloomberg Law.

“Rarely has our government taken such a public, affirmative measure to educate the country about a related set of disabilities to foster a culture of understanding and compliance,” said Shirley Lin, a law professor at Pace University, where she teaches courses on employment discrimination.

“Because millions of COVID long-haulers are in or will join the workforce, the legal challenge for employers is to train front-line managers to comply with the full scope of disabilities law,” Lin said in an email. “Ultimately, President Biden’s initiative is focused on expanding accommodations.”

Litigation Concerns

The U.S. Equal Employment Opportunity Commission, which enforces the ADA in private workplaces, hasn’t weighed in on legal considerations for workers experiencing long Covid.

The DOJ and HHS guidance tees up questions around whether an individual case of long Covid rises to the ADA’s definition of a disability, which would trigger an employer’s duties to ensure a workplace free from discrimination, harassment, and retaliation, and to reasonably accommodate that worker.

Disability discrimination suits already have been filed by workers who say they have long Covid, according to a Bloomberg Law review of federal court dockets.

“There are a lot of things that become disabilities, depending on their effect on your life,” said Matan Koch, vice president of workforce, leadership, and faith programs for RespectAbility, an advocacy group focused on people with disabilities. “If there were to be litigation on the topic, then the litigation would probably be focused on that substantial impairment question.”

Kara Ariail, a management-side partner with Holland & Knight LLP, said that based on what she’s been hearing on the impacts of the condition, it “pretty clearly fits within the ADA definition of a disability.”

Reasonable Accommodations

The next issue that likely will catalyze litigation is whether an accommodation is reasonable, or if it will pose an undue hardship on a business, according to Ballard Spahr LLP partner Jay Zweig, who represents employers.

The EEOC says an employer can use several factors to determine whether an accommodation is an undue hardship, including the cost of the accommodation and its impact on the business’s operation, among other considerations.

Long Covid can be characterized by tiredness, dizziness, difficulty thinking or concentrating, among other symptoms, according to the guidance.

Ariail said cognitive issues can “generally be very difficult to accommodate” from the employer’s perspective, but “you have to strike the right balance between whether an employee can still perform their job duties.”

Ariail said she welcomed the new guidance, which she viewed as settling some of the ambiguity and uncertainty around navigating long Covid-related requests for accommodation.

Asking for medical documentation to support a workers’ request for an accommodation is a best practice for employers, said Ariail. “In many ways, the process piece isn’t new—I think it’s just another challenging situation in terms of evaluating ADA accommodations,” she said.

“Employers really need to have not a policy, but a procedure, in place,” to field the employee requests, said Ballard Spahr’s Zweig.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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