As we touched on in a previous blog posting, a Covid-19 infection is not considered a disability under the Americans with Disabilities Act (ADA) as it currently stands. However, employees who experience ongoing sequelae from a Covid infection, a group fondly referred to as Covid long haulers may be eligible for some degree of protection under the legislation. In this blog, we’ll discuss how you can stay on the right side of the rather nebulous long haulers ruling and support your staff who continue to experience the fallout from infection.
But first, let’s strip it back to basics. In recommendations published over the summer, the US Department of Health and Human Services (HHS) and the Department of Justice noted that “although many people with COVID-19 get better within weeks, some people continue to experience symptoms that can last months after first being infected or may have new or recurring symptoms at a later time. This can happen to anyone who has had COVID-19, even if the initial illness was mild.” The guidance notes that “Covid can be a disability under Titles II (state and local government) and III (public accommodations) of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and Section 1557 of the Patient Protection and Affordable Care Act (Section 1557).” Specifically, the guidance defines someone as being eligible for coverage if their long Covid symptoms “substantially limits one or more major life activities.” The guidance cites lung damage, heart damage, kidney damage, neurological damage, circulatory system damage, and lingering mental health conditions as symptoms of long Covid. Other less serious but common lingering side effects include mental fog, joint pain, shortness of breath, headache, intermittent fever, and fatigue, among others.
In a comprehensive report by AON, a UK-based professional services firm, experts recommend that employers take the following steps to help best accommodate covid long-haulers:
Boost awareness:
First, employers should have an open dialogue with their supervisors and managers, if not the entire workforce about recognizing the symptoms of long Covid and understanding how these lingering symptoms may impact productivity. Managers should also be taught how to funnel worker reports of long Covid up the chain so that HR can be appropriately looped in and the reasonable accommodation process can be initiated or eligibility for leave under the Family and Medical Leave Act (FMLA) can be determined.
Emphasize benefits:
Together with your HR manager, develop a campaign to promote the various benefit offerings that may be of use to employees with long haul symptoms. These may include wellbeing perks designed to reduce the risk of chronic conditions, which research suggests puts people at an increased risk for long-haul symptoms. In addition, HR should plan to promote access to your Employee Assistance Program (EAP) to help employees navigate the emotional toll that a Covid diagnosis can unearth.
Evaluate accommodations:
As you develop your return-to-work plans, AON recommends that you “consider both physical and cognitive demands of employees.” They suggest that you perform a physical demands analysis (PDAs) that incorporates any work restrictions recommended by an employee’s treating physician and determine how any resultant accommodations might be implemented in your workplace — and potentially extended to multiple workers should additional workers come forward with requests.
Flex your flexibility:
Since many of the Covid-19 long-haul symptoms require follow-up with multiple medical specialists, where possible you will want to provide a flexible work environment that allows workers to take off as needed to attend these various follow-up appointments. You can further support employees navigating these realities by promoting your telehealth offerings and helping employees to find providers that are both in-network and geographically close to minimize interruptions during the workday.
Boost your business plan:
Depending on the size and scope of your business, even one employee suffering from symptoms of long haul Covid could significantly impact your productivity. Once you have a diagnosis from an employee in hand and better understand the scope of their health needs, you’ll want to develop a plan to help mitigate the impact of their absence including potentially cross-training other employees to handle special projects or other assignments as needed.
Plan for policy:
As we often note, all things Covid-19, especially as it pertains to employee laws are a moving target. Plan to monitor and review state, local, and federal policies, and operating practices as it pertains to employee leave, short-term disability, FMLA, and other Covid-related employment laws. Be sure that any relevant changes are being communicated to your managers and employees to ensure compliance and be open and honest that changes are to be expected as we navigate these unchartered waters.
Do you have long-haulers on your staff? What, if any, accommodations have you made to help support them in the workplace?
