COVID-19 and the ADA: Anything to See Here? (Yes.)

by Bill Nolan, Esq., Barnes & Thornburg LLP

It has been an interesting two years for employment lawyers. Much of what has always been interesting about employment law is not the change in the law (though there is plenty), but how we apply old law to the human condition. Well, you can’t beat 2020 and 2021 for an interesting human condition.

"Employees limited in their ability to work due to long COVID should communicate that fact to employers and request appropriate accommodation."

COVID-19 is about health, so almost by definition that implicates the Americans with Disabilities Act. Earlier this year the U.S. Equal Employment Opportunity Commission issued guidance saying that “long COVID” – more or less the persistence of COVID-19 symptoms over time – may be a disability under the ADA.

To its credit, the U.S. Equal Employment Opportunity Commission has, from time to time, issued guidance on various discrimination law issues under COVID-19. The guidance is generally plain English – always a plus – and on topics that employers and employees want to understand. But we have yet to be surprised by any of this guidance.

The guidance on long COVID is no exception. While it’s a good headline – after all, it includes “COVID” – the guidance is simply that long COVID might be a disability subject, like any disability, to a facts and circumstances determination of what is required of the employer. We knew that, because the standard for what constitutes a covered disability is not high since the passage of the ADA Amendments Act in 2008. If you have a serious and persistent health condition, it is a probably a disability under the ADA, and we move on to the analysis of what the employer’s reasonable accommodation obligations entail. So it is with long COVID.

Employees limited in their ability to work due to long COVID should communicate that fact to employers and request appropriate accommodation. Employers of such employees should manage these situations just as they have other disabilities in the three decades since the ADA passed. They can handle this, because they have been for years.

The real COVID-19/ADA game changer will be the acceleration of remote work, not specific to COVID-related conditions but rather to any conditions where an employee might benefit from working remotely. It is going to be harder for many employers to claim it is not a reasonable accommodation to let employees work from home when they have been doing so seemingly successfully throughout the pandemic. I expect that to be the employment law issue of 2023 as COVID-19 largely passes (right!?) and these issues arise more.

We will undoubtedly be back on both of these and other ADA issues.