As we previously wrote here, employers must now consider whether individuals reporting lingering physical and psychological impairments from the coronavirus, colloquially referred to as COVID-19 "long haulers," may be covered under federal, state, and local disability and medical leave laws. This week, on the 31st anniversary of the Americans with Disabilities Act (ADA), President Biden confirmed what we anticipated: individuals experiencing long COVID-19 symptoms may qualify for the protections of the ADA.

Long COVID-19 as a Disability under the ADA

The ADA protects an employee with an actual or perceived disability from discrimination. The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” As anticipated, the Biden administration has now declared that long COVID-19 is not a presumptive disability; rather, employers will be required to make an individualized assessment to determine whether an employee’s lingering COVID-19 symptoms “substantially limit a major life activity.”

In light of the increasing prevalence of long COVID-19, the Department of Health and Human Services and the Department of Justice issued joint guidance that lists common symptoms of long COVID-19 that may substantially limit a major life activity in a way that would trigger the protections of the ADA. The guidance reiterates that an impairment resulting from long COVID-19 does not need to prevent or significantly restrict an employee from performing a major life activity, and the limitations do not need to be severe, permanent, or long-term. Furthermore, long COVID-19 is considered a mental or physical impairment under the ADA “even if the impairment comes and goes.” The guidance provides some examples of long COVID-19 impairments that might qualify as a disability under the ADA, including the “brain fog” symptom that has been widely reported as related to COVID-19.

Employees reporting long COVID-19 impairments like “brain fog” will present particularly thorny accommodations scenarios for employers, particularly if such impairments are intermittent. However, it is clear from the Biden administration’s guidance that the federal government expects employers to make accommodations for these impairments as long as the accommodations do not place an undue hardship on the employer. Given the variety of symptoms presented by long COVID-19, coupled with the degree to which these symptoms may worsen with physical and mental activity, employers will have to take a careful approach to accommodations for these individuals.