Since the World Health Organization declared COVID-19 a pandemic, we’ve learned a lot about the disease that has upended our lives. Questions about transmission, the effectiveness of masks, and when vaccines will be available are largely settled. But now, as we grapple with the consequences of more than 500,000 dead and more than 25 million infected in the United States alone, new questions have arisen.
About transmission after vaccination, about how long immunity lasts, and especially about COVID longhaulers.
In a recent White House briefing, Dr. Anthony Fauci announced a nationwide initiative to study COVID-19 patients who are still suffering from symptoms weeks, or even months, after their initial infection. “(There are) a lot of important questions that are now unanswered that we hope with this series of initiatives we will ultimately answer,” Fauci said.
And as scientists turn their attention to understanding long COVID and figuring out how to help, longhaulers, their employers, and disability advocates are struggling to understand what protections longhaulers have under the federal disability laws.
The Equal Opportunity Commission Has Not Released Official Guidance
Scary Mommy spoke with Melissa Silver, JD, Legal Editor, XpertHR, about how the Americans With Disability Act (ADA) impacts COVID longhaulers. She noted that the Equal Employment Opportunity Commission (EEOC), the federal agency that investigates and enforces discrimination laws, including the ADA, has not yet addressed whether long-term COVID symptoms fall under the protections afforded by the ADA.
Because of the lack of guidance, there are no quick and easy answers to questions involving long COVID and the ADA. Each situation must be determined on a case-by-case basis.
Symptoms Must Substantially Limit Major Life Activity To Qualify Under The ADA
To qualify under the ADA, an “impairment must substantially limit major life activity,” says Silver, who defines major life activity as one that includes functions such as breathing, eating, sleeping, and possibly even reading and concentrating.
This definition does not require the impairment to be either permanent or temporary—only that it substantially limits a major life activity. For longhaulers, who do not yet know whether their long-term symptoms are temporary or permanent, this fact becomes crucial.
Longhaulers May Request A Reasonable Accommodation Under The ADA
Longhaulers who qualify for protections under the ADA can request a reasonable accommodation from their employer, says Silver. What a “reasonable accommodation” is will change based on the specifics of the situation—symptoms, job description, and size of the company. For example, a longhauler suffering from brain fog could request a modified work schedule, additional breaks, or another option that does not put an undue hardship on the employer.
To make the request, the employee doesn’t need anything written or formal, or to use the words “reasonable accommodation” or even reference the ADA specifically. An oral request is enough.
It’s An Ongoing Conversation Between Employer And Employee
The conversation about protections and reasonable accommodations between employers and longhaulers must be ongoing. Longhaulers should be aware that they are “not necessarily entitled to the exact accommodation they may request,” says Silver. There may be alternatives that work better or well for both parties. Silver says, “It’s important employees understand they have a duty to participate in these discussions with employer to come up with accommodations.”
Likewise, it’s important for employers to consistently check in with their employees suffering long-term symptoms. Long COVID is new and we don’t yet know how a person’s symptoms may change—for better or worse—over time. Employers should understand that “the duty to accommodate is ongoing, so need to periodically check in to make sure the accommodation is still working, and is effective, for that employee.”
Both parties should keep in mind that an employer’s duty doesn’t end at the ADA. According to Silver, the employer may have overlapping obligations under other federal laws, or even state and local laws when it comes to longhaulers.
Whether Longhaulers Qualify For Federal Disability Benefits Is Unclear
Separate from questions about protections under the ADA are questions about whether longhaulers qualify for federal disability benefits. To qualify for federal disability benefits, one must have three things, according to Linda Landry, an attorney at the Disability Law Center in Massachusetts, who spoke to NPR: a medical diagnosis, proof that the condition affects ability to work, and time. “[Y]ou have to have had or are likely to have a condition that affects your ability to work for 12 consecutive months,” Landry tells NPR.
Clearly, this is the part that becomes tricky for longhaulers. Not only has COVID been around for little more than twelve months (notwithstanding we can all agree they’ve been a long twelve months), but researchers do not yet know whether longhaul COVID is temporary or permanent and whether treatments will be able to relieve any or all symptoms.
The Social Security Administration has yet to actively take action with respect to longhaulers, and told NPR that “the current disability policy rules should be sufficient for evaluating COVID-related applicants, though the agency did not rule out taking additional action in the future.”
In the year since the World Health Organization declared COVID a pandemic, we’ve managed to answer a remarkable number of questions. Unfortunately in the wake of those answers, more questions have arisen, and many of those center around long COVID.
The good news is: the questions are being asked, the attention is being paid, and longhaulers will get the answers, and support, they need.