The U.S. Equal Employment Opportunity Commission’s recognition that long-haul COVID-19 may be considered a disability under the Americans with Disabilities Act is expected to increase employers’ potential liability, and could affect the interactive process in the workers' compensation arena at the state level as well.
Long haul COVID-19, according to the U.S. Centers for Disease Control and Prevention, is a condition that includes lingering symptoms felt by people recovering from COVID-19, such as fatigue, “brain fog,” shortness of breath, and dizziness upon standing, among other things. And while the severity of long COVID-19 symptoms varies and much remains unknown about the condition, including how many people it affects and how long the symptoms will last, it could create obstacles and additional problems for employers who have to try and accommodate these workers who have long-haul COVID-19. If QME's or AME's start determining that there are lasting effects, and permanent work restrictions related to their COVID-19 case, it forces employers to engage with workers in the interactive process.
Paul E. Starkman, an employment lawyer and member of law firm Clark Hill PLC in Chicago, said the issue could cause significant problems for employers because it involves such an amorphous and diffuse set of symptoms and is difficult to diagnose. I tend to agree, and with the symptoms potentially changing and in a constant state of flux, either worsening or improving, a different set of restrictions may need to be continually looked at by employers to try and accommodate these workers with long-haul COVID-19. It will therefore be incumbent on employers to work with workers' medical providers to obtain updated reporting on their conditions, in order to best accommodate them.
Doctors and scientists are still unsure of how permanent some of the symptoms will be for COVID-19 long haulers. And employers are in the same boat, so addressing these issues will be difficult for employers trying to engage in the interactive process when trying to safely bring these COVID-19 long haul workers back.
I certainly think there’s a very legitimate argument that, depending on the circumstances, someone with long COVID could meet the definition of disability,” said Marissa A. Mastroianni, an associate with Cole Schotz P.C. in Hackensack, New Jersey, who represents employers.