Happy anniversary to the Americans with Disabilities Act (ADA) which turns thirty-one this year. To celebrate its anniversary President Biden is “bringing agencies together to make sure Americans with long COVID, who have a disability, have access to the rights and resources that are due under the disability law.” According to President Biden, this “includes accommodations and services in the workplace, in school, and our health care system so they can live their lives in dignity and get the support they need as they continue to navigate these challenges.” The Department of Health and Human Services (HHS) jointly with the Department of Justice (DOJ), as well as the departments of Education and Labor, have released guidance explaining that long COVID can be a disability under various federal civil rights laws, including the ADA.

“Long COVID.” “Long-haul COVID.” “Post-acute COVID-19.” “Long-term effects of COVID.” “Chronic COVID.” For clarity, all of these terms refer to new or ongoing symptoms experienced by some people after first being infected with COVID-19 and they are generally referred to as COVID long-haulers. Approximately 30% of COVID positive patients are COVID long-haulers and reported continued symptoms as long as nine months after their initial confirmed positive, according to a study published in JAMA Network Open in February. According to the CDC, symptoms may occur regardless of the severity of the COVID illness and include difficulty breathing or shortness of breath, fatigue, sleeping problems, fevers, gastrointestinal issues, anxiety and depression, dizziness on standing, and “brain fog.” Some people who had severe COVID-illness may experience multiorgan effects or autoimmune conditions over a longer time with symptoms lasting weeks or months after COVID-19 illness. Finally, some who were hospitalized as a result of their COVID illness may suffer health effects during their recovery like severe weakness and exhaustion.

The guidance issued by HHS and DOJ addresses ADA Title II (state and local government) and Title III (public accommodations). The agencies adopted the CDC’s non-exhaustive list of long COVID symptoms. Per the guidance long COVID could be a disability if it substantially limits one or more major life activities. These disabilities are typically defined as a physical impairment affecting one or more body systems, including but not limited to neurological, cardiovascular, respiratory, and circulatory systems. Notably, this guidance does not apply to Title I of the ADA (employment), and the EEOC as of the date of publication of this article also has not released any guidance.

To date, at least two circuit courts—the Middle District of Georgia and the Easter District of Pennsylvania—have weighed in on COVID ADA claims of discrimination. In the Middle District of Georgia, the Court granted defendant employer’s motion to dismiss after plaintiff employee filed suit alleging that defendant discriminated against plaintiff based on plaintiff’s association with plaintiff’s brother, also an employee of defendant, who tested positive for COVID-19, in violation of the ADA. The key issue the Court considered when granting defendant’s motion to dismiss was whether plaintiff’s brother’s COVID diagnosis was a disability under the ADA. The Court found that plaintiff failed to demonstrate that plaintiff’s brother’s COVID-19 diagnosis was a disability where the plaintiff made bare allegations of a COVID diagnosis resulting in missed days of work, without allegations of the symptoms suffered and without allegations that the actions taken by defendant employer demonstrated that the employer regarded the brother as disabled.

In the Eastern District of Pennsylvania, the Court granted defendant employer’s motion to dismiss where plaintiff employee alleged discrimination in violation of the ADA, discrimination based on a perceived disability in violation of the ADA, and retaliation in violation of the ADA. In granting defendant’s motion to dismiss, the Court reasoned, “[p]laintiff has not alleged any facts regarding his symptoms or impairments as a result of his COVID-19 diagnosis, and has not alleged what “major life activity” or activities he was unable to perform as a result.” The Court also dismissed plaintiff’s retaliation claim because plaintiff failed to plead allegations that plaintiff made a request for a reasonable accommodation separate from plaintiff’s request for leave under the Family Medical Leave Act (FMLA).

In spite of the lack of formal guidance around Title I of the ADA employers would be well obliged to treat an employee’s long COVID request for a reasonable accommodation as they would any other request under the ADA. As the courts in the Middle District of Georgia and the Eastern District of Pennsylvania have already concluded, a COVID diagnosis alone is probably not sufficient to support the need for a reasonable accommodation. Similarly, missed days of work due to a COVID diagnosis are likely insufficient to support the need for a reasonable accommodation because by definition, every COVID positive person generally must quarantine for a minimum of ten days. But as both courts noted, if an employee’s accommodation request is based on their symptoms, the symptoms could rise to the level of a disability under the ADA and require a reasonable accommodation. Employers receiving this request should engage in a good faith effort to determine the extent of the employee’s disability and think creatively about reasonable accommodations. The employer’s burden under the ADA is to think critically about potential accommodations and provide an accommodation so long as it does not pose an undue burden on the employer. Employers are not required to provide the exact accommodation requested by the employee so long as the accommodation provided does in fact allow the employee to perform the essential functions of their job. If, after engaging in the interactive process, an employer determines that there are no reasonable accommodations available, employers may consider other alternatives, such as FMLA leave. Indeed, the Eastern District of Pennsylvania did not grant defendant employer’s motion to dismiss plaintiff employee’s FMLA claims where the employee had requested leave under the FMLA. This is not to say a plaintiff’s lawyer will not file an EEOC charge alleging violations of the ADA because an employee was unhappy with the reasonable accommodation offered or because the employer was unable to find a reasonable accommodation, but employers who have genuinely engaged in the interactive process, have a defense against compensatory and punitive damages under 42 USC 1981a(a)(3).