Understanding Long COVID as a Disability in the Workplace

With the rise of “Long COVID” as a serious health issue, the U.S. Department of Health and Human Services (HHS) and the U.S. Department of Justice (DOJ) jointly published guidance on whether and when Long COVID is a disability under the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act. The joint guidance also provides resources for additional information and best practices. 

The guidance explains that Long COVID – COVID systems that last weeks or months after first developing the disease, even if the initial illness was mild — is a disability under the ADA, Section 504 and Section 1557 if it “substantially limits one or more major life activities.” It notes that these laws and their related rules define a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of their major life activities. 

The guidance is careful to note that an individualized assessment will always be required to determine whether an individual’s Long COVID condition, or any of its symptoms, fit within the parameters of these laws. The guidance provides the following details, which may help potential claimants:

Long COVID is a physical or mental impairment

Under the relevant laws, a physical impairment includes any physiological disorder or condition affecting one or more body systems, including, among others, the neurological, respiratory, cardiovascular, and circulatory systems, and a mental impairment includes any mental or psychological disorder, such as an emotional or mental illness. 

The guidance asserts that Long COVID is a physiological condition affecting one or more body systems such that it can be a physical or mental impairment under the ADA, Section 504, and Section 1557, noting that some Long COVID patients experience various types of organ damage, neurological damage, damage to the circulatory system, as well as lingering emotional illness. 

Long COVID can substantially limit one or more major life activities

Under the relevant laws, “major life activities” includes a wide array of activities, including activities like working, concentrating, and interacting with others. The term “substantially limits” is also broadly construed, such that the limitation need not be permanent or severe and should be considered without the benefits of medication or other possible treatments or compensatory measures. 

Long COVID can substantially limit a major life activity in a variety of ways. Some examples include: 

• 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.

Since Long COVID can be a disability under these laws, people with Long COVID are entitled to full and equal opportunities to participate in and enjoy all aspects of civic and commercial life and should receive the full protection of these anti-discrimination laws. Business or a state or local government may be required to make changes to the way they operate to accommodate an individual’s Long COVID-related limitations. Such “reasonable accommodations” may include: 

• Providing additional time on a test for a student who has difficulty concentrating
• Modifying procedures so a customer who finds it too tiring to stand in line can announce their presence and sit down without losing their place
• Providing refueling assistance at a gas station for a customer whose joint or muscle pain prevents them from pumping their own gas
• Modifying a policy to allow a person who experience dizziness when standing to be accompanied by their service animal that is trained to stabilize them

The guidance does not have the force and effect of law and is only intended to provide clarity to the public regarding existing requirements under the law or the Departments’ policies.