Understanding long COVID: What employers need to know

Unfortunately, even with the end of the national state of emergencies, long COVID still poses exceptional challenges for employers and employees alike. Perhaps one of the most difficult challenges is that long COVID is not clearly defined. According to the Center for Disease Control (CDC) it can have many forms including Post-COVID Conditions, long-haul COVID, post-acute COVID-19, long-term effects of COVID, and chronic COVID.

The CDC has formulated “post-COVID conditions” to describe health issues that persist more than four weeks after being infected with COVID-19. These include:

• Long COVID (which consists of a wide range of symptoms that can last weeks to months) or persistent post-COVID syndrome (PPCS)
• Multiorgan effects of COVID-19
• Effects of COVID-19 treatment/hospitalization; and/or

• A non-exhaustive list of typical clinical symptoms in “long COVID” are tiredness, fatigue, difficulty thinking or concentrating (sometimes called “brain fog”), shortness of breath or difficulty breathing, headache, persistent loss of smell or taste, cough, depression, low-grade fevers, palpitations, dizziness, muscle pain, and joint pains.

According to the U.S. Department of Health and Human Services research suggests that between 5% and 30% of those who had COVID-19 may have long COVID symptoms, and roughly one million people are out of the workforce at any given time due to long COVID.

A 2022 survey conducted by the University Of New Hampshire’s Institute on Disability and the Kessler Foundation of nearly 3,800 supervisors found that 40% of them managed employees with lasting physical and/or mental effects of COVID-19 and almost 60% had employees that received some type of accommodation. Almost 30% did not receive accommodations either because the employee did not ask or because of the type of employment.

Which laws does an employer need to comply with?

Since long COVID is difficult to diagnose and can mean so many different things, it makes it difficult for an employer to evaluate whether an accommodation is needed under the Americans with Disabilities Act as amended (ADA) and whether unpaid time off is needed under the Federal Family Medical Leave Act (FMLA). There are several states that continue to have laws that include time off related to a new or long COVID infection. For the purposes of this article, we will be focusing on the two federal laws most likely to be activated by such an infection. Partnering with an HR expert is vital to navigating this area of employment disability law. Here are some tips to help an employer make decisions and help their employees.

What is an employer required to do under the ADA as amended?

The EEOC has issued guidance regarding when the ADA may apply. For a disability to occur under the ADA the individual goes through the same case by case evaluation process as with any other disability. The ADA requires job protection and reasonable accommodations to individuals who have a covered disability. This includes a person who has an “Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function); or a “Record of” an actual Disability or is “Regarded as” an Individual with a Disability: when a person is subject to an adverse employment action (such as demotion or termination) because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity with limited exception.

Since long COVID can limit or substantially limit major life activities, such as concentrating, thinking, or interacting with others, depending on the time period or severity, the individual may need a Reasonable Accommodation to perform the essential function of their job.

What is the risk to the employer if an accommodation is not given?

Employers are required to engage in the interactive process with employees. If a covered serious health condition is established, the two parties try to find an appropriate accommodation so that the employee can perform the essential functions of their position, which are the job functions that the employee must perform as part of their role. This is a conversation of potential accommodations that would allow the individual to keep working without a loss in pay or benefits.

Reasonable accommodations can take many forms, for example an employee with severe brain fog in the afternoons might be able to adjust their schedule to work in the morning when their concentration is better. A person who is suffering physical ailments may be given time off to attend physical therapy.

It is important for employers to recall that if the employer has a reasonable suspicion that the individual has long COVID, the burden may be on them to begin the interactive process regardless of whether the employee has requested an accommodation.

AskJAN the Job Accommodation Network has significant examples of potential accommodations specifically for long COVID to assist employers and employees effectively.

Should employers provide accommodation in the form of a leave of absence?

A reasonable accommodation under the ADA may be a leave of absence. Generally, if a condition is serious enough to be considered a disability under the ADA it will also qualify as a serious health condition under the FMLA which requires employers with 50 or more employees in a 50-mile radius to provide unpaid leave either consecutively or intermittently for up to 12 weeks in a 12-month period to eligible employees who meet the law’s criteria.

Are there other laws an employer would need to consider?

Yes, many states have their own rules and regulations regarding disability accommodation, time off, and COVID-related leave. Importantly, in some situations worker’s compensation statutes will also apply and could require an accommodation of light duty or otherwise.

What are the pros and cons of providing an accommodation?

Overall, the pros of providing accommodations far outweigh the cons. Employees who feel that their employer takes the time to work with them and accommodate them are more likely to be productive and remain loyal to the company. Likewise, the costs of recruiting, hiring, and training a new hire, far outweigh the cost of retaining talent, and the benefits are even higher when the employer considers the institutional knowledge that would otherwise be lost.

Cons can include the resources needed to train a temporary employee or overtime costs and temporarily lower morale while the employee is out. Some employers may think they have to create a new role for the individual under the ADA but that is not true. If an accommodation being requested causes undue hardship for an employer, they do not need to provide the accommodation. It is important to thoroughly exhaust the interactive process before coming to the conclusion of undue hardship.

Related: Employers must accommodate long COVID sufferers returning to work

In conclusion, long COVID is a complicated challenge. It is important that employers follow the law and HR best practices when considering how to best assist affected employees. Generally providing an accommodation, even if not required by law, will benefit both the employer and the employee. There is still much we do not know about long COVID and it is best for an employer to approach each situation with a thorough review, an open mind and the bigger picture.

Vanessa Matsis-McCready, associate general counsel, VP of HR Services, Engage PEO