Disability discrimination in the workplace occurs when an employer treats a qualified employee or applicant unfairly because of their disability. Disability discrimination can also occur if an employer fails or refuses to make reasonable accommodations for an employee with a disability or allows such an employee to be harassed or discriminated against because of their disability.
Reasonable accommodations vary based on a person’s specific needs, disability, and job requirements. Examples of reasonable accommodations are:
- Allowing an employee to modify or change their work schedule
- Allowing an employee to permanently work from home
- Making the workplace and/or an employee’s workspace accessible
- Offering or allowing an employee to take medical leave
- Providing modified or special equipment or devices
- Reassigning an employee to a new position or adjusting their work responsibilities as needed
As a result of the Coronavirus disease (COVID-19), many people suffer from long COVID, which we will discuss in further detail later. Many employers wonder whether an employee with long COVID qualifies as having a disability and whether they have to make reasonable accommodations.
The short answer is: Yes, employees with long COVID are protected under the Americans with Disabilities Act and The Fair Employment and Housing Act. In this article, we will discuss what long COVID is and when it is considered a disability under the ADA and FEHA.
What Is Long COVID?
After being infected with the virus that causes COVID-19, some people continue to suffer from the long-term effects of the infection after the standard few days it takes some to get over their symptoms. This condition is known as long COVID or:
- Post-COVID conditions (PCC)
- Long-haul COVID
- Post-acute COVID-19
- Post-acute sequelae of SARS CoV-2 infection (PASC)
- Chronic COVID
While research is still being done to understand who is most likely to develop long COVID and why, the CDC says that people who had severe COVID-19 illness are most commonly those who develop long COVID. However, anyone who has been infected with the virus can experience long COVID, and even people who did not test positive or were unaware they had COVID-19 can suffer from post-COVID conditions.
What Are the Symptoms of Post-COVID Conditions (PCC) or Long COVID?
Post-COVID conditions can last for as little as four weeks; however, some people may suffer from symptoms for months or years, which can result in disability. Long-haulers (i.e. those with long COVID) most commonly report that they suffer from the following symptoms.
- Fatigue (that interferes with daily life)
- Post-exertional malaise (i.e. symptoms that worsen after making any physical or mental effort)
- Respiratory issues (i.e. shortness of breath, coughing, difficulty breathing, etc.)
Other potential symptoms include:
- Changes in menstrual cycles
- Digestive issues (i.e. diarrhea, stomach pain)
- Heart conditions (i.e. chest pain, fast or pounding heartbeat)
- Joint or muscle pain or fatigue
- Neurological issues and mental health conditions (i.e. depression, anxiety, difficulty thinking or concentrating, headaches, sleep problems, vertigo, loss of or change in taste and/or smell)
- Pulmonary embolism
If you suffer from long COVID, you may also have symptoms that are hard to explain and/or manage, but your test results may appear normal. You may also experience new health conditions, like multiorgan effects, or develop additional health problems, such as post-intensive care syndrome and post-traumatic stress syndrome.
How Is Long COVID Diagnosed?
Currently, there is no test to diagnose long COVID, and healthcare providers may believe the symptoms are the result of another health issue as the condition has such a wide variety of symptoms. While a National Institutes of Health research team has identified a way to better define the disease and identify those who suffer from PCC, it may still be difficult for your healthcare provider to recognize PCC. If you believe you are suffering from long COVID and its related symptoms, you should still schedule an appointment. To prepare for the appointment, you should take note of:
- The date your symptoms started
- The activities that worsen or affect your symptoms
- The frequency with which you experience any symptoms
Long COVID & the Americans with Disabilities Act (ADA)
As of July 2021, long COVID qualifies as a disability under the Americans with Disabilities Act (ADA). A person can be protected under the ADA for their disability if it:
- Causes physical or mental impairment. Even if your long COVID symptoms are episodic, long COVID is a physical or mental impairment under the ADA if it affects one or more of your body systems or functions or mental or psychological health.
- Impedes major life activities. Major life activities include respiratory, lung, or heart function and activities that you may often engage in, such as concentrating, walking, or breathing. As we discussed the symptoms earlier, you know that people with long COVID often struggle with respiratory issues; they might also struggle to care for themselves, eat, walk, think, or interact with others.
- Substantially limits major life activities. If you are limited by your long COVID symptoms, you can also be protected by ADA laws.
Long COVID Protections Under FEHA
While mild and temporary COVID symptoms are not considered a FEHA disability, long COVID may be considered a disability under FEHA. This decision is based on Michele Roman vs. Hertz Local Edition Corp.
Roman sued her former employer, Hertz, because she was fired after coming to work sick (with mild COVID symptoms), which violated the company’s policies. Roman claimed that she was protected by the FEHA as COVID is a disability.
However, a United States District Court Judge for the Southern District of California ruled in favor of Hertz, because a disability, as defined by al. Code Regs. Tit. 2, §11065, does not include conditions that do not have residual effects, do not affect or limit major life activity, or are considered mild. Thus, as Roman’s symptoms did not linger and were mild, the Court decided she did not have a disability that protected her from termination. They did note that those with long COVID or other more severe cases may fall within the FEHA’s definition of disability.
Asking for Accommodations If You Have Long COVID
Your company may have a specific policy or form that you can complete to request accommodation. However, there isn’t a standard method. If your company doesn’t have an official method, you can simply inform your boss that you need accommodation. It is recommended that you make this request in writing so that it is documented; even if you schedule a face-to-face meeting, having the request in writing can serve as evidence if legal action is taken.
Get Legal Help
At Badame Law Group, our attorneys have over 60 years of collective experience and are dedicated to helping clients take action against disability discrimination in the workplace. If you have been unfairly treated in the workplace because of your long COVID diagnosis or symptoms, we can help you take action to hold your employer or those responsible accountable.
Contact our firm online to schedule a free consultation or call (949) 393-4249 today. Our attorneys are here to help ensure you are treated fairly and receive the accommodations you need.