President Biden recently marked the 31st anniversary of the Americans With Disabilities Act (ADA) by announcing that the Department of Health and Human Services and the Department of Justice have issued a joint memo setting forth new guidance on “Long COVID” as a disability under the ADA.Since the beginning of the COVID-19 pandemic, it has been a relatively uncontroversial proposition that individuals suffering from the acute effects of the virus could qualify as disabled under the ADA.

Somewhat more controversial, however, has been the issue of whether so-called “long haulers” could also be considered disabled under the ADA. These are individuals who have contracted the virus and may or may not have initially developed symptoms, but who then manifest or continue to experience symptoms months after being first infected.

The guidance provides a non-exhaustive list of common long COVID symptoms:

  • Tiredness or fatigue
  • Difficulty thinking or concentrating (sometimes called “brain fog”)
  • Shortness of breath or difficulty breathing
  • Headache
  • Dizziness on standing
  • Fast-beating or pounding heart (known as heart palpitations)
  • Chest pain
  • Cough
  • Joint or muscle pain
  • Depression or anxiety
  • Fever
  • Loss of taste or smell

Which brings us to the million-dollar question: can long COVID constitute a disability under the ADA? The guidance says yes if the individual’s symptoms constitute a physical or mental impairment that substantially limits one or more of the individual’s major life activities. (See 42 U.S.C. § 12102(1).)

So the first issue is whether long COVID can qualify as a physical or mental impairment. Perhaps unsurprisingly, the guidance says that it can. It notes that ADA regulations define a physical impairment as any physiological disorder or condition affecting one or more body systems, including, among others, the neurological, respiratory, cardiovascular, and circulatory systems. (See 28 C.F.R. §§ 35.108(b), 36.105(b).)

Long COVID satisfies this definition because individuals with the condition experience a variety of physiological conditions, such as lung, kidney, heart, and neurological damage, all of which are conditions affecting body systems.

The next issue is whether long COVID can substantially limit one or more major life activities. Here again the guidance says yes and sets out three examples of how long COVID may do so:

  • A person with long COVID who has lung damage causing shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
  • A person with long COVID with 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.

The guidance does caution that long COVID will not always qualify as a disability under the ADA. Rather, “[a]n individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity.”

Practitioners should note that this new guidance is expressly limited to Title II (state and local services and programs) and Title III (public accommodations) of the ADA. But even if this guidance doesn’t technically apply in the context of the ADA’s Title I, which prohibits discrimination against qualified individuals with disabilities in employment, it is difficult to see how its analysis would not apply at least to the extent that an employee must show that they are a qualified individual with a disability, i.e., a physical or mental impairment that substantially limits one or more major life activities

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