Understanding and Addressing Workplace Challenges Related to Long COVID

DEPARTMENT OF LABOR

On July 12, the Department of Labor (DOL), Centers for Disease Control and Prevention (CDC) and the US Surgeon General announced a “virtual crowdsourcing event” geared at information gathering around issues and impacts of long COVID in the workplace.  

Specifically, according to the DOL press release, the department is seeking public input on Long COVID in the following areas: 

• Challenges workers face as they cope with symptoms. 
• Support for workers with long COVID from their employers
• Ways to inform workers and employers about long COVID
• Organizations to engage to develop solutions for those affected by long COVID
• Obstacles to obtaining disability benefits that workers with long COVID face

The Department of Justice (DOJ) and the CDC have both previously published advisories that “long COVID” may be a disability under the Americans with Disabilities Act (ADA).   

Americans With Disabilities Act

The ADA defines a person with a disability as a person who “has a physical or mental impairment that substantially limits one or more major life activity.” This includes people who have a record of such an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability but are regarded as having a disability. It is also unlawful to discriminate against a person based on that person’s association with a person with a disability.  It is important to note here that this is a legal definition, not a medical definition, and at this point the medical definition of “Long COVID” is unsettled. Therefore your ADA interactive process will require a more fully individualized nature than more established conditions.   

EQUAL EMPLOYEMENT OPPORTUNITY COMMISSION

On April 11, the Equal Employment Opportunity Commission (EEOC), the agency responsible for the administration of the ADA, held a webinar on navigating workplace COVID-related disputes, where because of the nature of Long COVID, it advised employers to be flexible and creative. On the same day the DOL announced its crowdsourcing activity (July 12), the EEOC announced in their COVID technical assistance manual that Employers must justify mandatory COVID testing policies. Employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify testing to prevent workplace transmission, and employers must show that testing is job-related and consistent with business necessity, as defined by the ADA. 

According to the April webinar, 2,700 of the nearly 9,000 (Roughly 30%) COVID-19 charges handled by the agency since the start of the pandemic raised workplace issues related to the vaccine. And of those, only 300 (approximately 11%) were disability/ADA issues, meaning the overwhelming number of vaccine-related claims relate to religious accommodation requests or related discrimination allegations. Employers are well advised to navigate these issues carefully and through an interactive dialogue before making a determination that a belief is not sincerely held. 

The EEOC has previously provided that “although there is usually no reason to question whether the practice at issue is religious or sincerely held, if the employer has a bona fide doubt about the basis for the accommodation request, it is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is both religious and sincerely held, and gives rise to the need for the accommodation.”  

The EEOC lists factors, either alone or in combination, which might undermine an employee’s assertion that they sincerely hold the subject religious belief: 

• whether the employee has behaved in a manner markedly inconsistent with the professed belief; 
• whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
• whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and 
• whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. 

For employers considering requesting vaccination status for a variety of activities (even if mandatory vaccine policies are waived or relaxed) such as those who want to work in the office setting, those who wish to conduct business travel, those who want to attend work-related conferences, the agency reiterated that requesting a Yes/No Vaccination status from your employees is not a violation of federal anti-discrimination law. 

Where you are required to provide a reasonable accommodation, much like other aspects of providing reasonable accommodations, employers are not required to provide the accommodation the employee wants as long as it is reasonable.  And the agency also reiterated that COVID may also be an ADA protected disability, depending on the circumstances and that you need to be careful of caregiver discrimination and train your managers not to treat unfairly any worker who may need to take time away from work to care for individuals who may be dealing with pandemic-related issues.