DOJ HHS Guidance on Whether Long Haul Covid-19 is a Disability

July 26 was the 31^st anniversary of the ADA. As17 year old daughter would say, “Yeah!!!!!

 

Today’s blog entry deals with whether long-haul Covid-19 can be a disability under the ADA, §504 of the Rehabilitation Act, and §1557 of the Affordable Care Act. I have been saying for some time that long-haul Covid-19 may very well be a disability depending upon the circumstances. We now know from this guidance put out by DOJ and HHS, here, that I was absolutely on the right track. This blog entry doesn’t have the usual categories associated with it. What I have done is I have lifted verbatim the guidance and then have a thought/takeaways section afterwards. You may also see references to numbers. When I cut and pasted, those references did not show up. However, you can find the references associated with those numbers in the original guidance linked to above. The blog entry is really short, so I think you are going to want to read the whole thing.

 

1. What is long COVID and what are its symptoms? According to the Centers for Disease Control and Prevention (CDC), people with long COVID have a range of new or ongoing symptoms that can last weeks or months after they are infected with the virus that causes COVID-19 and that can worsen with physical or mental activity. Examples of common symptoms of long COVID include:

• Tiredness or fatigue
• Difficulty thinking or concentrating (sometimes called “brain fog”)
• Shortness of breath or difficulty breathing
• Headache
• Dizziness on standing
• Fast-beating or pounding heart (known as heart palpitations)
• Chest pain
• Cough
• Joint or muscle pain
• Depression or anxiety
• Fever
• Loss of taste or smell

 

This list is not exhaustive. Some people also experience damage to multiple organs including the heart, lungs, kidneys, skin, and brain.

 

Thoughts/takeaways: All of the items here would be physical or mental impairments under the ADA, §504, or §1557. Of course, that doesn’t answer the question of whether a person is a person with a disability because they must also be substantially limited in a major life activity, discussed below.

 

2. Can long COVID be a disability under the ADA, Section 504, and Section 1557? Yes, long COVID can be a disability under the ADA, Section 504, and Section 1557 if it substantially limits one or more major life activities.9 These laws and their related rules define a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual (“actual disability”); a person with a record of such an impairment (“record of”); or a person who is regarded as having such an impairment (“regarded as”). A person with long COVID has a disability if the person’s condition or any of its symptoms is a physical or mental impairment that substantially limits one or more major life activities.

 

This guidance only addresses the actual disability part of the definition of disability and not the regarded as and record all prongs . It does not cover other definitions of disability or eligibility requirements such as those necessary to qualify for Federal benefit programs under Social Security.

 

Thoughts/takeaways: While the guidance does not address the record of or regarded as prongs of the disability definition, that does not mean those prongs can be ignored.

 

1. Long COVID is a physical or mental impairment 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.

 

Thoughts/takeaways: All of the items here would be physical or mental impairments under the ADA, §504, or §1557. Of course, that doesn’t answer the question of whether a person is a person with a disability because they must also be substantially limited, discussed immediately below.

 

1. Long COVID can substantially limit one or more major life activities “Major life activities” 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. The term 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. The term “substantially limits” is construed broadly under these laws and should not demand extensive analysis. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not 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. The situations in which an individual with long COVID might be substantially limited in a major life activity are diverse. Among possible examples, some include:

 

• 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.

 

1. Thoughts/takeaways: This particular section of the guidance bears repeating:

 

“The term “substantially limits” is construed broadly under these laws and should not demand extensive analysis. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not 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.”

 

I have mentioned previously in my blog numerous times that as a preventive law measure, I like to ask myself the question whether the impairment, assuming it is temporary, is both transitory and minor. If the temporary impairment is both transitory and minor, you most likely have a disability under the actual disability prong even if the disability is temporary. Similarly, for the same reasons, if the disability goes longer than six months you most likely have an actual disability under the ADA. Again, the six months and transitory and minor approaches are preventive law and not a legal standard. Also, that substantially limits should not demand extensive analysis in most situations means that any request for documentation needs to be narrowly focused and not a fishing expedition. Finally, mitigating measures, with the exception of glasses, do not get factored into the question of whether a person has a disability. On the other hand, mitigating measures do come into play with respect to figuring out what reasonable accommodations are on the table.

 

 

3. Is long COVID always a disability? No. An individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity. The CDC and health experts are working to better understand long COVID.

 

Thoughts/takeaways: Readers of my blog know that an individualized analysis is always required when it comes to ADA issues.

 

4. What rights do people whose long COVID qualifies as a disability have under the ADA, Section 504, and Section 1557? People whose long COVID qualifies as a disability are entitled to the same protections from discrimination as any other person with a disability under the ADA, Section 504, and Section 1557. Put simply, they are entitled to full and equal opportunities to participate in and enjoy all aspects of civic and commercial life.

 

For example, this may mean that businesses or state or local governments will sometimes need to make changes to the way that they operate to accommodate a person’s long COVID-related limitations. For people whose long COVID qualifies as a disability, these changes, or “reasonable modifications,” may include:

• Providing additional time on a test for a student who has difficulty concentrating
• Modifying procedures so a customer who finds it too tiring to stand in line can announce their presence and sit down without losing their place in line
• Providing refueling assistance at a gas station for a customer whose joint or muscle pain prevents them from pumping their own gas
• Modifying a policy to allow a person who experience dizziness when standing to be accompanied by their service animal that is trained to stabilize them

 

Thoughts/takeaways: There are millions and millions of reasonable accommodations for specific disabilities. Always remember the do’s and don’ts of the interactive process, which we discussed here. Also, call the Job Accommodation Network, here, if you are stuck or looking for other ideas. If you are an entity involved in tests associated with licensing, don’t forget about complying with §309, 42 U.S.C. §12189, of the ADA. Also, Covid-19 and long-haul issues are coming for you if it hasn’t already.

 

5. What federal resources are there for people with symptoms of long COVID?

• The Office for Civil Rights of the Department of Health and Human Services (HHS) has the following page on civil rights and COVID-19: https://ift.tt/3BIx0no. o If you believe that an entity covered by HHS civil rights laws has violated your rights protected under these authorities, you may file a complaint at https://www.hhs.gov/ocr/complaints/index.html.

 

• The Civil Rights Division of the Department of Justice has the following page on its ADA.gov website that discusses topics related to COVID-19 and the ADA: https://ift.tt/3zMio4U. o If you believe that you or another person has been discriminated against by an entity covered by the ADA, you may file a complaint with the Disability Rights Section (DRS) in the Department of Justice. Information about how to file a complaint is available at https://www.ada.gov/fact_on_complaint.htm.

 

• CDC’s website has the following page on post-COVID conditions, which discusses long COVID: https://www.cdc.gov/coronavirus/2019-ncov/long-termeffects.html.

 

• The Administration for Community Living’s document, “How ACL’s Disability and Aging Networks Can Help People with Long COVID,” provides information on resources and programs to assist people with long COVID. This document is available at https://acl.gov/sites/default/files/COVID19/ACL_LongCOVID.pdf.

 

• While employment is outside of the scope of this guidance document, individuals who wish to learn more about COVID-19 and employment can visit the following Equal Employment Opportunity Commission page, which provides COVID-19 information and resources: www.eeoc.gov/coronavirus.

o The EEOC’s main COVID-19 publication, What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, is available at: https://ift.tt/3BTXCSs.

o For information about filing an employment discrimination charge, see https://www.eeoc.gov/filing-charge-discrimination.

 

Thoughts/takeaways: While not federal resources, the job accommodation network, mentioned above, and my blog, understanding the ADA, can be useful resources as well. Finally, training by knowledgeable people and consulting knowledgeable ADA counsel when appropriate are also very important.

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