Although many people with COVID-19 get better within weeks, some people continue to experience symptoms that can last months after first being infected, or may have new or recurring symptoms at a later time. This can happen to anyone who has had COVID-19, even if the initial illness was mild. People with this condition are sometimes called “long-haulers.” This condition is known as “long COVID” and it can be a disability under Title II (state and local government) and Title III (public accommodations) of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 , and Section 1557 of the Patient Protection and Affordable Care Act.
Yes, 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. A physical impairment includes any physiological disorder or condition affecting one or more body systems (e.g., the neurological, respiratory, cardiovascular, and circulatory systems). A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness. Long affecting one or more body systems (e.g., lung, heart, or kidney damage).
“Major life activities” include a wide range of activities (e.g., caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, communicating, interacting with others, and working). The term also includes the operation of a major bodily function (e.g., the immune system, cardiovascular, and neurological systems)., circulatory systems.
The term “substantially limits” is construed broadly under these laws. 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.
See Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557 for more information and examples of major life activities and when COVID-19 may substantially limit an individual’s major life activities.
Equal Employment Opportunity Update to the Americans with Disabilities Act and the Rehabilitation Act
On December 14, 2021, the Equal Employment Opportunity Commission (EEOC) announced an update to its COVID-19 technical assistance adding a new section to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The EEOC’s new questions and answers focus broadly on COVID-19 and the definition of disability under Title I of the ADA and Section 501 of the Rehabilitation Act, which both address employment discrimination. The updates also provide examples illustrating how an individual diagnosed with COVID-19 or a post-COVID condition could be considered to have a disability under the laws the EEOC nforces. Key information includes:
- In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.
- An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks—with no other consequences—will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.
- Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer. But, employers can choose to do more than the ADA requires.
- An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.
On July 26, 2021, the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) issued Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557. The DOJ/HHS Guidance focuses solely on long COVID. This new EEOC technical assistance focuses more broadly on COVID-19 and does so in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment. See the information at the beginning of this section for more information.
