On September 9, 2021, the EEOC announced that it recognizes that long COVID may be a disability under the Americans with Disabilities Act (ADA) and Section 501 of the Rehabilitation Act in certain circumstances. The EEOC agreed with the analysis of “long COVID” by the Department of Health and Human Services (HHS) and Department of Justice (DOJ) in their “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557.” The EEOC will release technical assistance
about COVID-19 and ADA “disability” in the employment context in the coming weeks. On August 2, 2021, the White House, HHS, Department of Education, and Department of Labor also hosted “A Conversation about Long COVID,” reviewing and providing support to the HHS and DOJ guidance.
Brief Summary of HHS and DOJ Guidance
According to the guidance, long COVID is a disability under the:
● ADA (Titles II and III at 42 U.S.C. §§ 12101-12103, and 12131-12189);
● Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794); and
● Section 1557 of the Patient Protection and Affordable Care Act (42 U.S.C. § 18116).
Note: Read more on the Office of Disability Employment Policy’s JAN website about long COVID and the ADA.
Person with a Disability
A person with a disability is someone:
● With a physical or mental impairment that substantially limits one or more of their major life activities;
● With a record of such an impairment; or
● Who is regarded as having such an impairment.
What is an Impairment
A person with long COVID has a disability if their condition or any of its symptoms is a physical ormental impairment that substantially limits one or more major life activities. A physical impairment includes any physiological disorder or condition affecting one or more body systems, including,
among others, the neurological, respiratory, cardiovascular, and circulatory systems. A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness.
Long COVID is a physiological condition affecting one or more body systems. For example, some people with long COVID experience:
● Lung damage
● Heart damage, including inflammation of the heart muscle
● Kidney damage
● Neurological damage
● Damage to the circulatory system resulting in poor blood flow
● Lingering emotional illness and other mental health conditions
Accordingly, long COVID is a physical or mental impairment under the ADA, Section 504, and Section 1557.
What is a Major Life Activity
Long COVID can substantially limit one or more major life activities, which include a wide range of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, writing, communicating, interacting with others, and working. It also includes the operation of a major bodily function, such as the functions of the immune system, cardiovascular system, neurological system, circulatory system, or the operation of an organ.
What Substantially Limits
To “substantially limit” is construed broadly under these laws and shouldn’t require extensive analysis. The impairment doesn’t need to prevent or significantly restrict an individual from performing a major life activity, and the limitations don’t need to be severe, permanent, or long-term.
Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and
goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.
Long COVID can substantially limit a major life activity and when someone with long COVID might be substantially limited in a major life activity are varied, for instance:
● A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
● A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
● A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.
However, long COVID isn’t always a disability. It requires an individualized assessment to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity.
People whose long COVID qualifies as a disability are entitled to the same rights and protections from discrimination as any other person with a disability under the ADA, Section 504, and Section 1557 (full
and equal opportunities to participate in and enjoy all aspects of civic and commercial life).
Vaccinations or Weekly Testing Required for All Employers with 100+ Employees, Paid Time Off, and More
On September 9, 2021, President Biden released his COVID-19 Action Plan requiring all employers with 100 or more employees to ensure their workers are vaccinated or tested weekly. According to the President, “The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency
Temporary Standard (ETS) to implement this requirement.”
OSHA is also developing an additional ETS requiring employers with more than 100 employees to provide paid time off for workers to get vaccinated or recover from vaccination. The administration is preparing for boosters to start the week of September 20th, subject to authorization or approval by
the FDA and a recommendation from the Advisory Committee on Immunization Practices.
The President’s plan also calls on entertainment venues like sports arenas, large concert halls, and other venues where large groups of people gather to require that their patrons be vaccinated or show a negative test for entry.
We will provide more information about these new rules when they are released.
IRS Guidance on Reporting Qualified Sick and Family Leave Wages for 2021
On September 7, 2021, the Internal Revenue Service issued Notice 2021-53 to help employers with their Form W-2 reporting and the amount of qualified sick and family leave wages paid to employees
for the leave they took in 2021 under the Families First Coronavirus Response Act (FFCRA), as amended by the COVID-Related Tax Relief Act of 2020, and the American Rescue Plan Act of 2021. Employers must report these wage amounts to employees either on Form W-2, Box 14, or in a
separate statement provided with the W-2.
The guidance also contains model language (starting on page 18) that employers can use—as part of the Instructions for Employee for the Form W-2 or on the separate statement provided with the W2—to explain to employees that these qualified sick and family leave wages may limit the amount of qualified sick leave equivalent or qualified family leave equivalent credits they may be entitled to for any of their self-employment income. The wage amount required by the notice on the Form W-2 will give employees who are also self-employed the information they need to figure out the amount of any sick and family leave equivalent credits they may claim in their self-employed capacities.
Of note, in July 2020, the IRS issued Notice 2020-54 with guidance about W-2 reporting of qualified sick leave and family leave under FFCRA for wages paid to employees for leave taken in 2020. The IRS has more tax relief information for employers affected by the COVID-19 pandemic on its website.