Long COVID: A Get-out-of-Work-Free card? | Venable LLP

Imagine if one of your employees (let’s call her Sarah) recently contracted COVID-19, as have so many workers over the past two years. However, unlike your other co-workers, Sarah’s symptoms did not subside after a few weeks. She struggles with persistent headaches, fatigue, brain fog, and shortness of breath, with no end in sight. She has long COVID. Sarah explains that she is eligible to work from home indefinitely and take intermittent vacations each time due to her long COVID, a disability under the Americans with Disabilities Act (ADA) and a serious medical condition under Family and Medical Leave Act (FMLA) is your symptoms coming to a head.

You want Sarah to return to work in person, and you hesitate to give her vacation time whenever she has a headache or fatigue. But can you demand that she come back and they quit if she doesn’t comply? How protected is it by the ADA and FMLA? Employers should consider the following questions when workers claim they have a long history of COVID.

Is your employee disabled?

First, you should determine if Sarah is disabled under the ADA. The United States Commission on Equal Opportunity (EEOC) guidance states that long COVID can be a disability if symptoms “significantly limit an important life activity.” The EEOC states that some people with long-term COVID experience limitations in their neurological, respiratory and cardiovascular functions, such that they are considered disabled. But this decision must be made on a case-by-case basis, so there is no clear rule that defines what constitutes a significant limitation of an important life activity.

In Sarah’s case, her brain fog, fatigue, headaches, and shortness of breath could be disabling as her symptoms limit her neurological and respiratory function. You could ask them for documentation of these symptoms, but a doctor’s note may not be particularly meaningful in long-COVID as there is currently no diagnostic exam or test to confirm symptoms such as headaches. Some employers will be frustrated by the lack of definitive information and testing for long COVID, but remember that failure to take a disability claim seriously could expose you to significant liability risk. Most importantly, it is important to ensure that your organization has robust processes in place to identify and assess requests for disabled housing.

Are there reasonable accommodations that do not unduly burden the company?

Second, if you determine that the employee has a disability, you must go through an interactive process with the employee to determine if reasonable accommodation is possible. Note, however, that employers are only required to make the accommodation if they do not impose an undue burden on the organization.

For Sarah, you would have to participate in the ADA’s required interactive process and decide if working from home and temporary absences would place an undue burden on the company. If her physical presence is required in order for her to do her job effectively, it may impose an undue burden and you may not need to consider her disability. However, if she has already demonstrated the ability to work effectively from home, or if employees frequently work from home, you may need to grant the placement or risk a disability discrimination lawsuit.

Does your employee have a serious medical condition that would allow an FMLA absence?

Third and last, you should decide whether Sarah’s long-term COVID is a qualifying serious medical condition that entitles her to take temporary leave. A serious medical condition is a condition that usually requires hospitalization or treatment by a healthcare provider. When an employee initially applies for FMLA leave (or requests time off from work for a reason that could fall under the FMLA), the employer may require that the employee provide a medical certificate stating the need for the leave and Estimates the length and frequency of vacation.

In Sarah’s case, it may well be that she has a serious medical condition that entitles her to take temporary leave. Although you could require her to provide an initial certificate for review and approval, you cannot require a new certificate each time she takes time off due to long COVID periods, leaving you little opportunity to question her illness and the reject applications. To make matters worse, you cannot request an early warning if a sudden increase in symptoms was not foreseeable for you and you report your incapacity to work as soon as possible. While this may sound grim, remember that having clear written policies about employee responsibilities when claiming FMLA time off can reduce confusion and help set employee expectations. If you approve your FMLA leave, it is limited to a total of 12 weeks per year. In addition, the FMLA has some limited tools that employers can use if they have doubts about the accuracy of the leave request or believe that the leave is being abused by the employee.

Conclusion

Disability discrimination and long-COVID FMLA claims are particularly problematic for employers because research on the disease is still evolving and many of the symptoms are difficult to prove or disprove. In fact, the existence and extent of the symptoms are essentially self-reported. Still, the EEOC has made it clear that long COVID can be a disability and employers may need to accommodate workers accordingly. You don’t want to face excessive requests for vacation or remote work, but a disability discrimination lawsuit could be worse.

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