Is Long Covid A Disability Under The Ada? Those Who Suffer are Protected Against Discrimination.
The Americans with Disabilities Act (ADA) (42 U.S.C. § 12101) was enacted by Congress in 1990. This civil rights law (as amended) prohibits discrimination based on disability. Disability is defined under SEC. 12102. [Section 3] (A) as “a physical or mental impairment that substantially limits one or more major life activities” of an individual. Impairment of a major bodily function includes, but is not limited to: “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” (Sec. 2 (B).
On July 26, 2021, the Office for Civil Rights under the U.S. Department of Health & Human Services in cooperation with the Civil Rights Division of the Department of Justice issued “Guidance on ‘Long COVID’ as a Disability Under the ADA Section 504, and Section 1557.”
This Guidance concludes that individuals who suffer long COVID are protected from discrimination in the workplace because 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).”
The Guidance includes a description of common symptoms associated with long COVID such as: 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 as well as Fever and Loss of taste or smell.
Now that COVID and its mutations, including the Delta variant and Omicron have bedeviled our lives for over two years, it is clear that “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.”
People who meet the ADA’s disability guidelines are “entitled to the same protections from discrimination as any other person with a disability under the ADA Section 504 and Section 1557.” They are entitled to “full and equal opportunities to participate in and enjoy all aspects of civic and commercial life.”
Employers and places of public accommodation need to be aware of the obligation to provide their long COVID suffering employees and the public with “reasonable modifications” such as providing students who may have difficulty concentrating with additional time to finish a test, giving employees and customers an opportunity to sit down or pumping gas for a customer who is disabled.
It is equally clear that under New Jersey’s Law Against Discrimination employees are also protected from workplace discrimination, as is the public generally. Read more this New Jersey PDF “5 Things You Should Know About Civil Rights and COVID-19.”
Has work exposed you to COVID 19 or a variant. If this has affected you in any way detailed above, you may have a viable Worker’s Compensation case. Feel free to call Taenzer & Ettenson, P.C. for a free consultation at 856.235.1234 to see if you qualify for workers’ compensation benefits in New Jersey. Or click here to use our contact form.