DOJ Issues Guidance on “Long COVID” and New York Issues Further Update on HERO Act
Knowledge

DOJ Issues Guidance on “Long COVID” and New York Issues Further Update on HERO Act

Key Takeaways

  • The ADA, Section 504, and Section 1557 all recognize “long COVID” as a disability

  • Long COVID is a recognized disability if it substantially limits one or more major life activity

  • Businesses and employers will need to make changes and provide a reasonable accommodation for a person’s long COVID-related limitations

  • New York employers should be mindful of upcoming deadlines relating to the HERO Act on August 5, 2021, and September 4, 2021

 

The Americans with Disabilities Act (ADA) has recognized the ongoing challenges of long-lasting effects from COVID-19 and the devastating and disproportionate impact on people with disabilities. The U.S. Department of Justice and the U.S. Department of Health and Human Services have jointly published guidance that explains when “long COVID” may qualify as a disability under the ADA, Section 504 of the Rehabilitation Act, and Section 1557 of the Patient Protection and Affordable Care Act.

People who continue to experience symptoms, or have new or recurring symptoms, many months after first being infected by COVID-19 are commonly referred to as “long-haulers.” These long-haulers suffer from a condition that is known as “long COVID.”

According to the CDC, people with long COVID have a range of new or ongoing symptoms that can last weeks or months after they are infected with COVID-19 and that can worsen with physical or mental activity. The list of possible symptoms is expansive, but some examples of common symptoms of long COVID include tiredness or fatigue, brain fog, shortness of breath, headaches, dizziness on standing, heart palpitations, cough, fever, depression or anxiety, joint or muscle pain, and loss of taste or smell.

The recently-published guidance clarifies that long COVID can be a disability under Title II of the ADA (state and local government), Title III of the ADA (public accommodations), Section 504, and Section 1557 if it “substantially limits” one or more “major life activities.” Major life activities include a wide range of activities, such as caring for oneself, eating, sleeping, walking, lifting, bending, breathing, concentrating, thinking, communicating, and working. The term “substantially limits” is broadly construed under these laws; it 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. Nevertheless, long COVID does not always qualify as a disability. An individualized assessment is necessary to determine whether a person’s symptoms substantially limit a major life activity.

The determination of whether an individual is substantially limited in a major life activity is made without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Further, even if the impairment comes and goes, it is still considered a disability if it would substantially limit a major life activity when the impairment is active. While the situations in which an individual with long COVID might be substantially limited in a major life activity can vary greatly, the guidance provided a few more common examples, including people with long COVID experiencing (1) lung damage that causes shortness of breath, fatigue, and related effects; (2) symptoms of intestinal pain, vomiting, and nausea that have lingered for months; and (3) memory lapses and brain fog. In each of these three scenarios, the person would qualify as having a disability.

Further, 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.  Employers and businesses should take note that they will sometimes need to make changes to accommodate a person’s long COVID-related limitations to ensure that these individuals can participate in and enjoy all aspects of civic and commercial life.

The guidance set forth a few helpful examples of the types of modifications that a business may be expected to make due to long COVID: (1) providing additional time on a test for a student who has difficulty concentrating; (2) modifying the procedures for a customer who finds it too tiring to stand in line so that he/she can sit down without losing their place in line; (3) providing assistance at a gas station for a customer whose joint or muscle pain prevents them from pumping their own gas; or (4) modifying a policy to allow a person who experiences dizziness when standing to be accompanied by their trained service animal.

Where feasible, businesses should provide all reasonable modifications to those who are disabled by long COVID, just as they would for those who are disabled by any other qualifying disability.

UPDATE ON THE NEW YORK HERO ACT

On May 5, 2021, Gov. Andrew Cuomo signed the New York Health and Essential Rights Act (HERO Act) into law. The HERO Act mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic. The purpose of the HERO Act is to protect employees against exposure and disease during a future airborne infectious disease outbreak.

For a more complete explanation of the Hero Act and its requirements, please visit:

Employers should be mindful of two upcoming deadlines relating to the HERO Act based upon guidance that was issued on July 6, 2021. First, employers have until August 5, 2021 to establish an airborne infectious disease exposure plan. Employers can either adopt one of the model standard exposure prevention plans, or develop and establish an alternative prevention plan that meets or exceeds the minimum standards.  The model plans are currently available on the New York State Department of Labor website in English. On the website, the DOL states that they will also be available in Spanish soon. Notably, there is no airborne infectious disease designation by the New York State Department of Health currently in effect that would require the plans to be put into action; however, the adoption of a plan is necessary by the deadline.

Once the plan is adopted, employers have 30 days or at the latest until September 4, 2021 (if their plan is adopted on August 5, 2021), to provide their exposure prevention plan in writing to their workforce, including full-time and part-time employees, independent contractors, and workers hired through a staffing agency. Employers are also required to post their exposure prevention plan in a visible and prominent location within each worksite.  While it is unclear from the guidance whether verbal review of the plan is required at this time versus when the designation is made by the Department of Health, we are recommending verbal review and sign off of the plan when it is distributed. Additional guidance is expected in the fall with respect to the HERO Act’s other requirements.

For more information or immediate guidance, contact: