Employers Deal With “Long-Haul Covid” And How It Affects The Workplace
ADA Accommodations For Employees with Long-Haul COVID-19
We are beginning to see further effects of COVID-19 in those who have previously had the virus. As people begin to get back to work, we see that some have been affected by the COVID-19 virus with continuing symptoms. The CDC has begun to refer to this condition as having “long-haul covid.” As COVID “long-haulers” re-enter the workplace, they may qualify for ADA accommodations.
Although most people with COVID-19 get better within weeks of illness, some people experience long-haul COVID, also known as post-COVID conditions. Post-COVID conditions, sometimes referred to as long-haul COVID, are a wide range of new, returning, or ongoing health problems people can experience four or more weeks after first being infected with the virus that causes COVID-19. Even people who did not have COVID-19 symptoms in the days or weeks after they were infected can have post-COVID conditions. These conditions can have different types and combinations of health problems for different lengths of time.
President Biden announced recently that those suffering “Post-Acute Sequelae of Sars-Cov-2 Infection,” aka long-haul COVID-19, may qualify for protection under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).
Long Term Covid Symptoms – Guidance to Employers
Employers should treat requests for leave or accommodation relating to long haul COVID-19 as they would any other non-obvious impairment.
People with long-haul Covid may qualify as having a disability under the Americans with Disability Act (ADA) 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 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. In fact, disability discrimination suits have already been filed by workers who say they have long-haul COVID, according to Bloomberg Law’s review of federal court dockets. Therefore, it is imperative employers ensure reasonable accommodations as they work with employees that could potentially have long-haul COVID.
The next issue that likely will spark litigation is whether an accommodation is reasonable, or if it will pose an undue hardship on a business.
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.
Best Practices for Long-Haul COVID-19 Accommodations
Engage in an interactive process with the individual to determine what their limitations are and what accommodations they seek. Remember, the ADA requires employers to reasonably accommodate employees and applicants for employment who have disabilities.
Conduct an individualized assessment to determine whether the individual has a disability as defined by the ADA. A “disability” in this context is an impairment that substantially limits major life functions. To this end, ask the individual to have their healthcare provider provide written confirmation of:
- the nature of the impairment, its severity, expected duration, and the extent to which it substantially limits the individual’s major life functions;
- the individual’s ability to perform the essential functions of the position, with or without reasonable accommodation; and
- what accommodations the provider believes would allow the individual to safely perform the essential functions of the position.
- Assess undue hardship on business operations.
If it appears the individual has a disability, further engage with the individual regarding potential accommodations. While the ADA does not allow the individual to dictate the accommodation the employer provides, it is preferable for the individual and the employer to agree.
Regardless of the outcome, carefully document all steps in the process and clearly communicate with the individual seeking accommodation both during the interactive process and as to the final decision on the matter.
An HR Expert Can Help Prevent A Legal Disaster
A company such as MyHRConcierge has HR professionals and services that can help you or your current HR department to navigate through the difficult COVID world. Compliance is key, and updating various policies and procedures, in addition to your employee handbook, will help you remain legally compliant with changing COVID regulations. Our HR experts continue to help businesses mitigate costly legal risks associated with the pandemic. We have flexible options to provide you the guidance you need to mitigate your risks and will be happy to speak to you to find your best, solution to help you move forward.