Although many people with COVID-19 get better within weeks, some people continue to experience symptoms that can last months after first being infected, or may have new or recurring symptoms at a later time. This can happen to anyone who has had COVID-19, even if the initial illness was mild. People with this condition are sometimes called “long-haulers.” This condition is known as “long COVID.”
In light of the rise of long COVID as a persistent and significant health issue, the Office for Civil Rights of the Department of Health and Human Services and the Civil Rights Division of the Department of Justice have joined together to provide this guidance.
This guidance explains that long COVID can be a disability under Titles II (state and local government) and III (public accommodations) of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and Section 1557 of the Patient Protection and Affordable Care Act (Section 1557). Each of these federal laws protects people with disabilities from discrimination. This guidance also provides resources for additional information and best practices. This document focuses solely on long COVID, and does not address when COVID-19 may meet the legal definition of disability.
- What is long COVID and what are its symptoms?
According to the Centers for Disease Control and Prevention (CDC), people with long COVID have a range of new or ongoing symptoms that can last weeks or months after they are infected with the virus that causes COVID-19 and that can worsen with physical or mental activity.
Examples of common symptoms of long COVID include:
- Tiredness or fatigue
- Difficulty thinking or concentrating (sometimes called “brain fog”)
- Shortness of breath or difficulty breathing
- Dizziness on standing
- Fast-beating or pounding heart (known as heart palpitations)
- Chest pain
- Joint or muscle pain
- Depression or anxiety
- Loss of taste or smell
This list is not exhaustive. Some people also experience damage to multiple organs including the heart, lungs, kidneys, skin, and brain.
- Can long COVID be a disability under the ADA, Section 504, and Section 1557?
Yes, long COVID can be a disability under the ADA, Section 504, and Section 1557 if it substantially limits one or more major life activities. These laws and their related rules define a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual (“actual disability”); a person with a record of such an impairment (“record of”); or a person who is regarded as having such an impairment (“regarded as”). A person with long COVID has a disability if the person’s condition or any of its symptoms is a “physical or mental” impairment that “substantially limits” one or more major life activities.
This guidance addresses the “actual disability” part of the disability definition. The definition also covers individuals with a “record of” a substantially limiting impairment or those “regarded as” having a physical impairment (whether substantially limiting or not). This document does not address the “record of” or “regarded as” parts of the disability definition, which may also be relevant to claims regarding long COVID.
- Long COVID is a physical or mental impairment
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.
- Long COVID can substantially limit one or more major life activities
“Major life activities” 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. The term 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.
The term “substantially limits” is construed broadly under these laws and should not demand extensive analysis. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not 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. The situations in which an individual with long COVID might be substantially limited in a major life activity are diverse. Among possible examples, some include:
- 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.
- Is long COVID always a disability?
No. An individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity. The CDC and health experts are working to better understand long COVID.
- What rights do people whose long COVID qualifies as a disability have under the ADA, Section 504, and Section 1557?
People whose long COVID qualifies as a disability are entitled to the same protections from discrimination as any other person with a disability under the ADA, Section 504, and Section 1557. Put simply, they are entitled to full and equal opportunities to participate in and enjoy all aspects of civic and commercial life.
For example, this may mean that businesses or state or local governments will sometimes need to make changes to the way that they operate to accommodate a person’s long COVID-related limitations. For people whose long COVID qualifies as a disability, these changes, or “reasonable modifications,” may include:
- Providing additional time on a test for a student who has difficulty concentrating
- Modifying procedures so a customer who finds it too tiring to stand in line can announce their presence and sit down without losing their place in line
- Providing refueling assistance at a gas station for a customer whose joint or muscle pain prevents them from pumping their own gas
- Modifying a policy to allow a person who experience dizziness when standing to be accompanied by their service animal that is trained to stabilize them
Contact the Law Offices of Renee Lazar at 978-844-4095 to schedule a FREE one hour no obligation consultation to determine whether you have a disability discrimination claim against your Massachusetts employer.