Long COVID and mental health considerations moving forward

On July 26, 2021, the Department of Justice (DOJ) and Department of Health and Human Services (DHS) issued guidance defining “long COVID” and listing the condition as a disability under the Americans with Disabilities Act (ADA) Section 504 of the Rehabilitation Act (Section 504) and Section 1557 of the Affordable Care Act (Section 1557).  

The symptoms that produce long COVID may make an employee eligible for disability if it substantially limits one or more major life activities.  As we continue to learn more about COVID and its impacts on long term health, physicians are witnessing more individuals experiencing COVID symptoms that last for weeks or even months after first contracting COVID.  Long COVID can occur in anyone who has been infected with COVID, even if their initial case was mild.  Individuals experiencing extended symptoms are sometimes called “long-haulers,” a condition now known as long COVID.

As a result of the rise of long COVID cases as a persistent and significant health issue, the Office for Civil Rights and the Civil Rights Division of the DOJ have joined together to provide new guidance.  Long COVID is classified as a disability under Titles II and Titles III of the ADA, Section 504 and Section 1557.  

Each of the listed laws protect individuals with disabilities from discrimination.  Individuals suffering from long COVID now meet the disability definition, are eligible for workplace accommodations and are protected from discrimination within the workplace.

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 and their symptoms 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 or dizziness on standing
• Fast-beating or pounding heart (known as heart palpitations)
• Chest pain
• CoughJoint or muscle pain
• Depression or anxiety
• Fever
• Loss of taste or smell

As we learn more about long COVID, this list of symptoms may expand.

An individual with a disability is defined as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of the individual; a person with a record of such an impairment or a person who is regarded as having such an impairment.  Long COVID may also constitute a disability under the Wisconsin Fair Employment Act (WFEA), which defines disability as an “impairment which makes achievement unusually difficult or limits the capacity to work.”

Per guidance from the ADA, long COVID may limit a major life activity in the following ways:

• 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 among other major life activities.

If an individual is classified as being disabled with a long COVID diagnosis, then he/she is provided protections under the law from discrimination.  Employers are required to provide reasonable accommodations specific to the individual’s needs and current limitations.

In addition to long COVID, employers are also faced with an increase in employees struggling with mental health within the COVID world. The increased mental health issues may amount to an employee qualifying as an individual with a disability.  As a result, employers are receiving more ADA/WFEA disability requests and/or FMLA requests for leave related to an employee’s disability than ever before.  

Employees requesting leave or accommodations must go through the interactive process, including exchanges between the employee and employer and typically a consultation with the employee’s health care provider.  Potential accommodations that may be considered in the context of mental health disabilities include:

• Work schedule adjustments
• Break modifications
• Remote work options
• Avoiding known triggers (e.g. noise)
• Private space
• Reassignment to vacant position
• Job restructuring

Importantly, reasonable accommodations do not excuse misconduct in the workplace.  Additionally, it is possible that an accommodation proves to be an undue hardship on the employer.  In making that determination, the EEOC explained it must be “significant difficulty or expense”, leaving employers to consider their own resources, the cost of accommodation, impact on operations, safety concerns and flexibility of workplace.

Given the significant changes during the pandemic and its impact on employment, employers must remain flexible and find ways to update their practices to better handle the various issues addressed above. For instance, employers can utilize a vaccine validation system to ensure that employees are vaccinated against COVID-19, doing this will provide a much-needed protection against virus transmission and help ensure the health and safety of remote and on-site workers. In anticipation of receiving accommodation requests, employers should consider reviewing their job descriptions at this time to ensure they accurately reflect essential functions and requirements for the position to avoid needing to provide unnecessary accommodations in the future.  

Additionally, employers should create a consistent methodology for dealing with disability accommodation requests to avoid inconsistent rationale.  Ultimately, when employees raise concerns regarding mental health or long COVID, employers should be ready to engage in the interactive process to determine the best path moving forward.

If you have any questions regarding this information, please contact your Davis|Kuelthau, s.c. attorney or the author, Abby S. Tilkens at atilkens@dkattorneys.com or 920.431.2230.

Abby S. Tilkens serves as member of the firm’s Labor & Employment team and the School and Higher Education practice group in Green Bay. Her practice primarily focuses on counseling education clients in school law and labor and employment issues. Abby can be reached at atilkens@dkattorneys.com or 920.431.2230.