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EEOC’s move on long COVID-19 creates liability for employers

Posted On: Sep. 28, 2021 7:00 AM CST

long covid

The U.S. Equal Employment Opportunity Commission’s recognition that long COVID-19 may be considered a disability under the Americans with Disabilities Act is expected to increase employers’ potential liability.

The condition includes lingering symptoms felt by people recovering from COVID-19, such as fatigue, “brain fog,” shortness of breath and dizziness upon standing, according to the U.S. Centers for Disease Control and Prevention.

The severity of long COVID-19 symptoms varies and much remains unknown about the condition, including how many people it affects and how long the symptoms will last.

The U.S. Department of Health and Human Services and the U.S. Justice Department issued joint guidance on treating long COVID-19 as a disability under the ADA in June, and the EEOC says in a notice on its website it expects to issue similar guidance.

The federal ADA, which has parallel state laws, requires employers with 15 or more employees to provide reasonable accommodations to qualified employees if they can do their job without causing the employer “undue hardship.”

A person with a disability is someone whose condition substantially limits one or more major life activity, such as walking or standing. Related laws that may be a factor in dealing with long COVID-19 include the Family Medical Leave Act, and it will likely affect workers compensation claims acceptance, management and disability indefinitely as well, experts say.

The EEOC’s involvement “really isn’t shocking,” given that the ADA’s definition of disability “is generally pretty broad and, given what we know to date about long COVID, I certainly think there’s a very legitimate argument that, depending on the circumstances, someone with long COVID could meet the definition of disability,” said Marissa A. Mastroianni, an associate with Cole Schotz P.C. in Hackensack, New Jersey, who represents employers.

The EEOC guidance will be significant, “especially given the increase in cases that we’re seeing due to the delta variant and breakthrough infections for fully vaccinated people,” said Alexa Miller, an associate with Faegre Drinker Biddle & Reath LLP in Florham Park, New Jersey. 

Paul E. Starkman, an employment lawyer and member of law firm Clark Hill PLC in Chicago, said the issue could cause significant problems for employers because it involves such an amorphous and diffuse set of symptoms and is difficult to diagnose.

The move by the EEOC will create further challenges for employers that also are trying to understand the complex interactive accommodation process required, said Allyson K. Thompson, a partner with Kaufman Dolowich Voluck LLP in Los Angeles.

“It multiplies the issues for employers,” said Eric Meyer, a partner at FisherBroyles LLP in Philadelphia, making it “incumbent upon the employer to ask for information from the worker’s medical provider.”

Accommodating an employee with long COVID-19 can be as simple as providing them with a chair if they suffer from dizziness, said J.D. Piro, Norwalk, Connecticut-based senior vice president with Aon Health Solutions.

But in some cases it will require more substantive changes.

“You may have to do things like modify deadlines, change shifts, perhaps change working hours,” depending on the symptoms and diagnosis, Mr. Starkman said.