July 26, 2021 – HHS and DOJ Jointly Publish Disability Guidance for COVID-19:

On July 26, 2021, the U.S. Department of Health and Human Services (HHS) and U.S. Department of Justice (DOJ) jointly published a document titled “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557.” In this guidance document, HHS and DOJ describe the symptoms of long COVID and the different vital organs that the condition damages, including the heart, lungs, kidneys, skin, and brain. Because the long-term effects of this condition can be so serious, the agencies specify that long COVID can be considered a disability under Titles II and III 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 (ACA), which protect people with disabilities from discrimination. To qualify for these protections, a person’s long COVID symptoms must satisfy a two-prong test: their symptoms must represent a physical or mental impairment that substantially limits one or more major life activities.

HHS and DOJ offer several examples of COVID-19 health outcomes that could result in a physical or mental impairment:

  • Lung damage;

  • Heart damage, including inflammation of the heart muscle;

  • Kidney damage;

  • Neurological damage;

  • Damage to the circulatory system resulting in poor blood flow; and

  • Lingering emotional illness and other mental health conditions.

If a person’s symptoms represent a physical or mental impairment similar to those listed above, the impairment must substantially limit one or more major life activities to be considered a qualifying disability. While a multitude of health outcomes caused by COVID-19 could satisfy this requirement, HHS and DOJ clarify that being experiencing long COVID does not automatically qualify as a disability. The agencies offer some examples of situations where a person’s physical or mental impairment resulting from COVID-19 substantially limits one or more major life activities:

  • 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.

These protections provide a guarantee that people living with disabilities are entitled to full and equal opportunities to participate in and enjoy all aspects of civil and commercial life. If you are experiencing debilitating symptoms of long COVID, you can also apply for disability benefits through the Social Security Administration. Additionally, the Administration for Community Living has published a guide to connect you with community supports and services. To learn more about COVID-19 and employment discrimination, the Equal Employment Opportunity Commission has published an employment discrimination resource page.

P.M. Asked: Can I Negotiate Remote Work as a Condition of Employment if I am Immunocompromised?

“I am immunocompromised and thinking of switching jobs. Because of my compromised immune system, I need to work remotely during the coronavirus pandemic to avoid exposure to COVID-19. My current employer allows me to work remotely as a reasonable accommodation, but I don’t want to move to another job if they will not provide it. How can I negotiate remote work as a reasonable accommodation from a prospective employer as a condition of employment?”

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