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July 29, 2020, 10:16 a.m. EDT

Is COVID-19 considered a disability? Are you entitled to take time off without losing your job? Here’s what you should know

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By Meera Jagannathan

Whether you suffer severe COVID-19 complications, experience lingering symptoms, or fear contracting the disease due to an underlying condition, you could be entitled to workplace accommodations under U.S. disability law. 

A recent Centers for Disease Control and Prevention report concluded that COVID-19, the disease caused by the new coronavirus, “can result in prolonged illness, even among young adults without underlying chronic medical conditions.” And an increasing number of reports show that a subset of COVID-19 survivors — dubbed “long-haulers” — endure symptoms such as fatigue and decreased lung function for months after contracting the disease, even in some cases that were considered “mild.”

Still others are hospitalized with the illness and face a long recovery . Meanwhile, people with preexisting conditions such as type 2 diabetes or asthma, wary of returning to a physical workspace due to their increased risk for severe COVID-19 illness, might want to work from home or seek additional on-the-job protection.

So can COVID-19 be considered a disability under the Americans with Disabilities Act? The answer will depend on the facts of any individual case, legal experts say, but there are a few things to know about requesting accommodations or leave from your workplace. 

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.” Major life activities can include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

The Equal Employment Opportunity Commission said in a late-March outreach webinar that it was “unclear” at that time whether COVID-19 was or could be a disability under the ADA, which turned 30 last weekend , citing the novelty and unknown factors surrounding the disease.

“Coronavirus alone may not be considered a disability under the ADA, due to the illness being transitory and having limited impact on major life activities in ordinary circumstances,” reads a blog post from the Job Accommodation Network (JAN), which is funded by a Labor Department contract and provides technical assistance on the ADA and job accommodations.

Most state laws haven’t addressed this issue, added Sarah Wieselthier, an associate at the law firm Fisher Phillips who represents employers in labor and employment issues and has written about COVID-19 and discrimination law.

But New York City says it protects “actual or perceived” COVID-19 infection as a disability under its human-rights law — meaning employers can’t harass or discriminate against employees on that basis, and have a duty to accommodate employees with COVID-19-related disabilities “unless doing so poses an undue hardship or where the disability presents a direct threat that cannot be adequately mitigated by a reasonable accommodation.”

“This obligation extends to all disabilities, including both those directly related to COVID-19 and underlying conditions for which exposure to COVID-19 may pose a particular risk of complication,” the city’s guidance says .

Very mild, short-term COVID-19 cases that don’t rise beyond the level of a regular cold or flu likely wouldn’t be considered a disability for the purposes of anti-disability discrimination under the ADA, said Rachael Langston, a senior staff attorney for the San Francisco-based Legal Aid at Work. On the other hand, experiencing serious COVID-19 complications like pneumonia might constitute a disability, since those would be a more severe limitation of a person’s ability to “perform major life activities,” she said.

With that said, each case would be evaluated on an individual basis with respect to how the illness affected the person and what it restricted them from doing, Langston told MarketWatch. “There’s no 100% black-and-white answer,” she said. 

As for people who experience long-term COVID-19 symptoms months into the future, that lasting impact “would arguably constitute a disability” in many cases, Langston said.

“Regardless of whether it was caused by COVID or not caused by COVID, the person is experiencing a health issue — and that’s what’s important in terms of whether or not this person is entitled to an accommodation; whether or not they have any job protections based on their disability,” Wieselthier said.

Langston said her organization was hearing most often from individuals worried that their preexisting conditions could put them at higher risk for COVID-19 complications. While many people with a heart condition or diabetes might have been able to go to work with no problem pre-pandemic, coming in close proximity to other people could now put their health at severe risk, she said.

“Arguably in many, many cases, someone with an underlying condition would be equated to someone who has a disability — and because of that, they are entitled to ask their employer for a reasonable accommodation for their disability as it relates to the pandemic,” Langston said. Possible accommodations might be telework or social-distancing measures in the workplace, she said.

Langston has also heard from workers with mental-health disabilities like anxiety, which the pandemic — along with the prospect of going to work around other people — has exacerbated. “That’s another reason for which you could request a reasonable accommodation,” she said. “It’s a reality for a lot of people.”

An employer can’t issue a broad policy that says all employees who fall into a certain category, such as being pregnant or older than 65, must stay home because they may be at high risk, Wieselthier said — even if such an action is well-intentioned. “We’re never having blanket policies that say, ‘All employees with disability X automatically get accommodation Y,’” she said. “Everything has to be looked at on an individual basis.”

As for workers without disabilities who live with someone who is at elevated risk for severe COVID-19 illness, the ADA doesn’t mandate that employers provide them with accommodations based on their family member’s underlying condition, though they’re free to provide that flexibility if they like. “Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment,” the EEOC says .

If you have COVID-19, are experiencing long-term symptoms from the disease, or have a preexisting condition that has you uneasy about returning to work, here’s what you need to know about your rights:

There are state and federal protections, including the Families First Coronavirus Response Act (FFCRA) , that entitle you to sick leave if you are eligible, Langston said. “Regardless of whether your COVID rises to the level of disability, you do have that leave as long as you qualify under the FFCRA,” she said. You may also have rights under the Family and Medical Leave Act (FMLA) .

If you’ve already used up all your time and don’t qualify for the FMLA or FFCRA, you can request leave or extended leave as a disability accommodation under the ADA, Langston said.

The ADA requires that employers provide “reasonable accommodations” to workers with disabilities, provided they wouldn’t result in “undue hardship” such as significant expense or difficulty. A reasonable accommodation, the EEOC says, “is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.”

Langston recommended consulting JAN for more COVID-19-specific information; possible accommodations could include telecommuting, additional personal protective equipment, a modified work environment to facilitate social distancing or temporary work reassignment, she said.

Once you figure out what you might need, ask your employer, supervisor or human-resources representative for the accommodation, Langston said; while these requests don’t need to be in writing , she advises following up in writing to put yours on the record. To support your request, an employer is allowed to ask for medical documentation that establishes you have a covered disability, describes the major life activities your disability limits, and describes the accommodation that would help, if you know what that is.

At that point, your employer should engage you in the so-called interactive process to work toward figuring out accommodations. While they’re not required to do so, employers “should strongly consider” accepting alternative forms of medical documentation given the pandemic’s limitations on in-person doctor visits, Langston said.

Edgar Ndjatou, the executive director of the nonprofit employee-rights organization Workplace Fairness, said it’s best to be as transparent as possible with your employer so that you can get the assistance you need. That doesn’t mean you have to offer up your entire medical file with unrelated information, he said — but it can help to be forthcoming about the changes in your lifestyle. “It serves no purpose to not be as descriptive as possible about what’s going on,” he said.

And when it comes to requesting an accommodation for a disability, COVID-19-related or otherwise, it’s important to keep the conversation going with your employer, Langston said. “If the employee ends the conversation or doesn’t respond, then the employer can also have a defense there for not accommodating, because the employee didn’t continue the conversation,” she said.

Advocate for yourself as much as you can, Ndjatou added. “Don’t be caught flat-footed — learn as much as you can about the virus, what conditions you’re going through, what the long-term effects could be,” he said. 

After all, he said, “you need to know this stuff so you can make decisions about the ability to earn income.”

“Maybe you’ll decide that, ‘I need to change careers, because I need to be in a career that will allow me to work from home or has more flexibility,’” he said. While employers are obligated by law to provide reasonable accommodations absent undue hardship, he added, “it’s also good for employees to be prepared for all possible scenarios.”

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