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Soon, we will hit the two-year mark since the COVID-19 virus entered our collective lives. For certain people, the medical effects of the virus can continue long after we put the virus itself in the rear-view mirror.

For some people who were infected, lingering symptoms can last for many months, or possibly years.

In late summer, the U.S. Department of Health and Human Services and the U.S. Department of Justice (DOJ) indicated that long COVID could be a disability under the Americans with Disabilities Act (ADA). The DOJ, however, focused on the public accommodation provisions of the ADA. Whether employers need to provide reasonable accommodations for employees with long COVID requires an individualized assessment.

An employee could, for example, need help performing specific job duties due to the continuation of any long-COVID symptoms, such as the following:

  • Fatigue
  • Difficulty thinking or concentrating
  • Shortness of breath or difficulty breathing
  • Headache Dizziness on standing
  • Heart palpitations
  • Chest pain
  • Cough
  • Joint or muscle pain
  • Depression or anxiety

Under the ADA, a disability is a physical or mental impairment that substantially limits one or more major life activities, and the long-COVID symptoms can affect such activities.

Employees may request a workplace change due to long COVID, and employers need to react appropriately. These requests trigger ADA obligations, including having an interactive discussion with the employee, with a focus on identifying an effective accommodation.

An employee with shortness of breath, for example, might need an accommodation of using tools or equipment to help avoid more strenuous activities. Another employee with fatigue might benefit from a sit/stand chair if the job otherwise entails standing for long periods. Another might benefit from the use of a service animal trained to provide stabilization during dizzy spells.

No one-size-fits-all approach exists when it comes to reasonable accommodations. Employers need to look at the employee’s limitations in relation to the job’s essential functions. They need to identify the barriers between the two and work to break down or eliminate them. Employers may request reasonable documentation of the employee’s limitations unless the condition is obvious.

FMLA leave

Of course, employees may also need time off when they are incapacitated or when they need to care for a family member due to long COVID. This could call for job-protected leave under the Family and Medical Leave Act (FMLA).

The virus could result in a chronic serious health condition under the FMLA, and not just one that otherwise results in an incapacity of a few day days or a couple weeks. Perhaps employers will add COVID to the list of common long-term conditions, such as migraines.

Mental health issues

The pandemic is also leaving its mark on people’s mental health, whether they had the virus or not. The Centers for Disease Control and Prevention (CDC) indicated that large disease outbreaks have been associated with mental health problems, and COVID is no different. From August 2020 to February 2021, the percentage of adults with recent symptoms of an anxiety or a depressive disorder increased from 36.4 to 41.5 percent.

For employers, this can add to the increase in requests for accommodations under the ADA and time off under the FMLA, as mental health conditions can be serious health conditions under both laws.

Adding to the mental health issue is the current tight labor market, resulting in employees working long hours. Some industries, such as health care, are harder hit.

In some respects, all this can add up to a perfect storm from an employee leave perspective. In short, trying to keep employees at work may never have been more challenging.