By: Lía Fiol-Matta, Esq. and Ty Hyderally, Esq.
Many months into the COVID-19 pandemic, its effects on businesses, government agencies, employees and workers in general continue to be of deep concern. COVID-19 is caused by a coronavirus called SARS-CoV-2. While older adults and people with serious underlying medical conditions like heart or lung disease or diabetes seem to be at higher risk for developing more significant complications from COVID-19, unfortunately, the virus affects individuals of any age group and health condition. To date, in the United States alone, 8.26 million cases of COVID-19 have been diagnosed, with a tragic 220,000 deaths reported. During this pandemic, we continue to assist individuals facing the effects of the coronavirus on workplace rights and employer responsibilities.
An area of concern that has grown significantly involves the employment rights of what is known as COVID-19 “long-haulers”. The term refers to individuals with prior COVID-19 diagnoses who continue to experience symptoms months after the initial onset of the disease. The most common symptoms reported by long haulers are fatigue, body aches, shortness of breath, difficulty concentrating or “brain fog”, inability to exercise, headache, chronic cough, gastrointestinal symptoms, and difficulty sleeping. It is estimated that tens of thousands of people in the United States have such a lingering illness following COVID-19. In some cases, people recover from the more serious symptoms of the virus, are able to walk, but require supplemental oxygen to help them breathe. Some individuals experience a persistent low-grade fever even when they have tested negative for the virus. To date, doctors and scientists cannot predict who will become a long-hauler or how long the symptoms may last.
This situation, understandably, poses questions regarding an employer’s responsibilities to accommodate the needs of its employees who may be long-haulers as well the protections such employees have in the workplace. The long-term effects of COVID-19 for long-haulers begs the question of whether such individuals satisfy the definition of an individual with a disability under the federal Americans with Disabilities Act of 1990, 42 U.S.C. §12101, et seq. (“ADA”). The ADA covers employers with 15 or more employees, including state and local governments. The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.§794. To be protected under the ADA, an employee must show that, with an accommodation, they are able to perform the essential functions of the job.
The ADA does not identify a specific length of time a health condition must last before it falls under the scope of the law. A “disability” under the ADA includes: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Typically, “substantially limits” has been interpreted to rule out conditions of short duration and from which a person will completely recover. The ADA describes an impairment as “transitory and minor,” when it is “an impairment with an actual or expected duration of [six] months or less.” The ADA regulations provide that the “condition, manner, or duration” of the condition can help determine whether it substantially limits a major life activity. There is no clear threshold of how long a condition must persist for it to qualify as a disability under the ADA.
The uncertainty of whether lingering effects of the coronavirus can be defined as a disability under the ADA makes it possible that as COVID-19 long-haulers continue to live with the effects of the virus, these conditions will most likely meet the ADA’s definition of disability. For employees who request an accommodation, employers must engage in an interactive process to determine whether the employer can provide one without undue burden. In addition, an employee’s health condition cannot be the reason for an adverse employment action, such as discipline or termination.
Some long-haulers recover enough to be able to work remotely or even go into a physical office, but they often require accommodations. Employees facing a prolonged and unpredictable recovery can benefit significantly from remote work or part-time employment but this is not feasible for all jobs, leading many long-haulers to unfortunately lose their employment and suffer financial and emotional hardship. Other accommodations for long-haulers may include paid or unpaid time off for recovery, medical appointments and treatment, flexible work hours, permission to take frequent hydration and bathroom breaks or even providing equipment such as a different desk chair.
If you are a COVID-19 long hauler in New York, your employment is protected under the New York State and/or New York City Human Rights Law and Civil Rights Law, N.Y. Exec. Law §290 et seq. and N.Y.C. Adm. Code §8-101 et seq. The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”) protects against disability discrimination and retaliation in New Jersey. If you wish to discuss your employment rights under any of the antidiscrimination laws discussed, you may contact our office.
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