As we progress into 2021 and further away from 2020, many are beginning to feel as though they can finally see the light at the end of the “COVID-19 tunnel.”
Vaccine distribution has increased. Offices and schools are reopening, people are returning to work, and many are experiencing something approaching normalcy in their lives again.
However, there are some individuals who continue to struggle with long-lasting health effects: the COVID-19 long-haulers.
COVID-19 seemed to affect everyone who became infected with it a little differently. Symptoms ranged from minimal to incapacitating with the duration ranging from days to months. Typically, though, the symptoms involved flu-like symptoms (sometimes moderate, sometimes severe) that lasted for a couple of weeks.
Since late spring of last year, there have been numerous reports of individuals suffering from lasting symptoms stemming from COVID-19.1 The symptoms of post-COVID-19 syndrome have lasted months at a time for some. Just like symptoms of the virus itself, they range from bizarre to potentially life-threatening.2
In particular, symptoms can include a loss in taste or smell, multi-organ effects on the heart and lungs, and chronic fatigue, among others.3 Still, the medical community’s evaluation of the full extent of the possible long-term effects continues to develop given the novelty of COVID-19.
As these COVID-19 long-haulers re-enter the workforce while continuing to experience the symptoms of post-COVID-19 syndrome, they bring with them challenges that they and their employer must work through to determine how to best address their conditions and aid in their return to the workforce.
Providing a Reasonable Accommodation
Under the Americans with Disabilities Act of 1990 as amended (ADA), a medical condition is considered a disability if the impairment “substantially limits one or more major life activities of the individual.”4 Importantly, not all physical or mental impairments trigger the protections of the ADA.5
However, the regulations define major life activity broadly, dictating that the term “major” be an undemanding standard, and include conscious activities such as breathing, walking, sleeping, caring for one’s self as well, as unconscious activities such as major bodily functions.6
Additionally, the regulations dictate that the phrase “substantially limits” should be read broadly in favor of expansive coverage.7
As such, it is likely that employees suffering from certain symptoms for post-COVID-19 syndrome would be able to seek reasonable accommodations under the ADA. In fact, many of the above health conditions symptomatic of post-COVID-19 syndrome have actually already been held as disabilities under the ADA. For example, courts have held heart conditions,8 lung conditions,9 and chronic fatigue (a la chronic fatigue syndrome)10 to be disabilities under the ADA.
However, in order to obtain a reasonable accommodation, the employee must still be able to perform the essential functions of their job even with an accommodation, and the accommodation must not impose an undue hardship on the employer. If these requirements are not met, the employee may be denied the accommodations necessary to continue employment with an employer.
If an employee believes he or she may be covered by the ADA, the first step is to advise the employer that they would like an accommodation and request to engage in the interactive process. The employer must then undertake an evaluation of the requested accommodation, and either implement it or work with the employee to find another reasonable accommodation.
Providing FMLA Leave
The Family and Medical Leave Act of 1993 (FMLA) may provide another option for employees suffering from post-COVID-19 syndrome.
To qualify for FMLA leave, an employee must have worked more than 1,250 hours for a whole year – about 24 hours per week in a year – for a company with at least 50 employees, in 20 or more work weeks in the current or previous year.11
The FMLA allows for covered employees with a serious health condition to take up to 12 weeks of unpaid leave.12 During these 12 weeks, the employee’s job is protected, and they must be reinstated to the position or a substantively similar position upon return.
Therefore, if the employee is actually unable to perform the essential functions of their job, FMLA leave may end up being the best option for an employee, based upon their health.
However, the decision as to whether an employee should seek and obtain a reasonable accommodation for their post-COVID-19 syndrome symptoms or take FMLA leave should be made by the employee. Employers should be careful to avoid forcing an employee to exhaust FMLA leave instead of attempting to reasonably accommodate the employee.13
Taking FMLA Leave after FFCRA Leave
During the height of the pandemic, Congress passed the Families First Coronavirus Relief Act (FFCRA). The FFCRA did not add additional periods of protected unpaid leave, but only extended the 12 weeks already provided by the FMLA, such that FMLA leave could be taken for COVID-19 related reasons.14
If an individual uses leave under the FFCRA at any point, including when they were battling COVID-19, then that time must be subtracted from the 12 weeks of FMLA leave they have remaining, until the their FMLA leave resets or is replenished.
Conclusion: Difficult Tasks
The medical conditions caused by post-COVID-19 syndrome pose difficulties for both employees and employers.
Employees suffering long-term side effects of COVID-19 face the difficult task of both determining the extent of their medical conditions that could change as time passes, while also attempting to secure reasonable accommodations that would allow them to continue earning a living to support their families.
Their employers, on the other hand, face the difficult task of evaluating the accommodations they are able to provide an employee based on the employee’s evolving restrictions, while also ensuring that they avoid violating either the ADA or FMLA, and that their business continues to operate smoothly.
This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section web pages to learn more about the benefits of section membership.
4 42 U.S.C. § 12012(2).
5 Howard v. Navistar Int’l Transp. Corp., 904 F. Supp. 922, 927 (E.D. Wisc. Nov. 3, 1995).
6 29CFR § 1630.2(i).
7 29 CFR § 1630.2(j).
8 Yinger v. Postal Presort, Inc., 693 Fed. Appx. 768, 772 (10th Cir. 2017).
9 See Fitzgerald v. Freightliner of Ariz. LLC, 2019 U.S. Dist. LEXIS 186950, at *16, 2019 WL 5579595 (Dist. Ct. Az. Oct. 29, 2019).
10 Alifano v. Merck & Co., 175 F. Supp. 2d 792, 797 (E.D. Penn. Dec., 2001).
12 29 U.S.C. § 2612(a)(1)(D).
13 Brownlow v. Alfa Vision Ins. Co. 2021 U.S. Dist. LEXIS 53383 at *20, F.Supp. 3d, 2021 WL 1087475 (M.D. Tenn. March 22, 2021).
14 29 U.S.C. § 2612(a)(1)(F).