With vaccine distribution well under way, more employers are beginning or continuing to plan how to safely return their workforce to the office. When implementing reopening policies, employers should be mindful of a worrisome trend among those who have recovered from the coronavirus but are still suffering from continuing psychological and physical complications. As employees return to the workplace, employers must now consider whether these individuals, colloquially referred to as COVID-19 "long haulers," may be covered under federal, state, and local disability and medical leave laws.

Americans with Disabilities Act Implications

The Americans with Disabilities Act (ADA) protects an employee with an actual or perceived disability, which the ADA defines as a physical or mental impairment that substantially limits one or more major life activities. Under the ADA, there is no exhaustive list of impairments covered as a disability, and each case is determined based on an individual's specific limitations on major life activities. Traditionally, the "substantially limits" language in the statute has been interpreted to exclude conditions of a short duration and from which an individual will fully recover.

Currently, COVID-19 long haulers are reporting a variety of different symptoms that may or may not subside despite treatment from medical professionals. For example, many individuals who were infected with COVID-19 are reporting lasting memory retention issues, light-headedness, and difficulty focusing or breathing. These symptoms may substantially limit an individual's major life activities with no sign of abatement, raising the possibility that the residual effects of COVID-19 may qualify as a disability under the ADA. If an employee's long haul symptoms amount to a disability under the ADA, his or her employer is required to make reasonable workplace accommodations that allow the employee to perform his or her job despite the long haul symptoms, as long as it would not cause an undue hardship for the employer's business. For example, a worker who typically performs her job at the office may request to perform her duties remotely on days when her symptoms are prevalent.

Family and Medical Leave Act Implications

Another important consideration for employers faced with an employee reporting difficulty at work because of COVID-19 long haul symptoms is whether the employee is eligible for medical leave under the Family and Medical Leave Act (FMLA). Eligible employees are entitled to leave under the FMLA for certain qualifying reasons, including a serious health condition. The FMLA defines a serious health condition as an impairment, illness, injury, or physical or mental condition of a short-term nature that involves inpatient care or continuing treatment by a healthcare provider. Under certain circumstances, FMLA leave can be taken intermittently for chronic medical conditions that flare up and subside periodically. It is easy to imagine a scenario where an employee recovering from COVID-19 reports an inability to work on some days (but not others) because of respiratory symptoms linked to COVID-19 that intensify and abate without warning. Under circumstances like this, employers would need to analyze whether an employee is entitled to intermittent leave under the FMLA. It is also not out of the realm of possibility that employers might have to provide a COVID-19 long hauler with some combination of FMLA leave and a reasonable workplace accommodation under the ADA, depending on the specific impairment and circumstances affecting the employee.

State and Local Law Implications

In addition to federal law, employers must be cognizant of their state and local laws and regulations governing employee leave and COVID-19. Many states are now providing paid or unpaid leave for employees suffering from active infections and symptoms of COVID-19. For example, the California Department of Labor has indicated that employers in California must provide supplemental paid sick leave to employees who are experiencing symptoms of COVID-19 and seeking a medical diagnosis. Other states, such as New York, are providing paid leave for periods of quarantine associated with active COVID-19 infections but have not yet provided guidance on leave associated with long haul symptoms of COVID-19.

The health complications of employees experiencing long hauler symptoms are likely to continue. Given the lack of government guidance on how employers should manage employees experiencing COVID-19 long haul symptoms, employers must carefully navigate these issues as they arise. We will continue to monitor the situation for additional legislative developments and guidance.