The Office for Civil Rights of the U.S. Department of Health and Human Services (HHS) and the Civil Rights
Division of the U.S. Department of Justice (DOJ) this week issued joint guidance advising that “Long COVID” may qualify as a disability under the ADA (Americans with Disabilities Act), Section 504 (of the Rehibilitation Act of 1973), and Section 1557 (of the Patient Protection and Affordable Care Act) if it substantially limits one or more major life activities. The full advisory may be found at the following link:
HHS and DOJ note that Long COVID will not always qualify as a disability: “An individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity.” Examples of changes to operations that businesses or state or local governments will sometimes need to make in order to accommodate a
person’s Long COVID-related limitations may include, among others noted, “providing additional time on a test for a student who has difficulty concentrating.” HHS and DOJ additionally caution:
- “The impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not need to be severe, permanent, or long-term.”
- “Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active."
- “The civil rights protections and responsibilities of these federal laws apply even during emergencies. They cannot be waived.”
These laws and their related rules define a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a person with a record of such an impairment; or a person who is regarded as having such an impairment. The guidance does not represent a change in the law,
but merely reiterates that regardless of the origin, schools and employers need to consider COVID-19 and the impact of the illness on the individual, when considering requests for accommodations of employees and students under Section 504, the ADA and the ACA.
The attorneys at Sara Leon & Associates, PLLC are prepared to assist in regard to any ADA or section 504 workplace accommodations issues.
