Imagine one of your employees (let’s call her Sarah) recently contracted COVID-19, as so many workers have in the past two years. Unlike your other employees, however, Sarah’s symptoms did not subside after a few weeks. She struggles with lingering headaches, fatigue, brain fog, and shortness of breath, with no end in sight. She has long COVID. Sarah declares that because her long COVID is a disability under the Americans with Disabilities Act (ADA) and a serious health condition under the Family and Medical Leave Act (FMLA), she’s entitled to work from home indefinitely and to go on intermittent leave each time her symptoms spike.
You want Sarah to return to work in person, and you are hesitant to grant her leave every time she has a headache or fatigue. But can you require that she return, and terminate her if she does not comply? To what extent is she protected by the ADA and FMLA? Employers should consider the following questions when employees assert that they have long COVID.
Is your employee disabled?
First, you should determine whether Sarah is disabled under the ADA. Guidance from the U.S. Equal Employment Opportunity Commission (EEOC) states that long COVID may be a disability if symptoms “substantially limit a major life activity.” The EEOC explains that some people with long COVID experience limitations to their neurological, respiratory, and cardiovascular functions such that they are considered disabled. But that determination must be made on an individual, case-by-case basis, so there is no bright-line rule that defines what constitutes a substantial limitation of a major life activity.
In Sarah’s case, her brain fog, fatigue, headaches, and shortness of breath could constitute a disability because her symptoms limit her neurological and respiratory functions. You could ask her for documentation of these symptoms, but a doctor’s note may not be particularly probative for long COVID, because currently there is no diagnostic exam or test to confirm symptoms like headaches. Some employers will be frustrated by the lack of definitive information and testing for long COVID, but remember that a failure to take a claim of disability seriously could present a considerable liability risk. Above all, it’s important to make sure your organization has robust procedures in place for identifying and evaluating disability accommodation requests.
Is there a reasonable accommodation that won’t impose an undue burden on the business?
Second, if you determine that the employee is disabled, you must undergo an interactive process with the employee to decide whether a reasonable accommodation is possible. Note, however, that employers are obligated to implement the accommodation only if it does not impose an undue burden on the organization.
For Sarah, you would need to engage in the ADA’s required interactive process and decide whether working from home and intermittent leave place an undue burden on the business. If her physical presence is required for her to do her job effectively, this may constitute an undue burden and you may not have to accommodate her disability. On the other hand, if she has already demonstrated the ability to work from home effectively, or if employees commonly work remotely, you may need to grant the accommodation or risk a lawsuit for disability discrimination.
Does your employee have a serious health condition that permits FMLA leave?
Third and finally, you should decide whether Sarah’s long COVID is a qualifying serious health condition that entitles her to take intermittent leave. A serious health condition is one that generally requires inpatient care or treatment by a healthcare provider. When an employee initially requests FMLA leave (or requests time off from work for a reason that might qualify under the FMLA), employers can require the employee to submit a medical certification establishing the need for leave and estimating the duration and frequency of the leave.
In Sarah’s case, she may well have a qualifying serious health condition that would entitle her to take intermittent leave. Although you could require her to submit an initial certification for review and approval, you cannot ask for a new one each time she takes time off because of long COVID, which leaves you with little recourse to question her illness and deny the requests. To make matters worse, you also cannot require advance notice of her need to take leave if a sudden spike in symptoms was not foreseeable to her and she provides notice of her inability to work as soon as possible. While this may sound bleak, remember that clear written policies on employee responsibilities in taking FMLA leave can reduce confusion and help set employee expectations. If you do approve her FMLA leave, she is limited to a cumulative total of 12 weeks per year. The FMLA, in addition, does have a few limited tools that employers can utilize if they doubt the accuracy of the leave request or feel the leave is being abused by the employee.
Disability discrimination and FMLA claims based on long COVID are particularly problematic for employers because research on the disease is still developing and many of the symptoms are difficult to prove or disprove. Indeed, the existence and extent of the symptoms are essentially self-reported. Nevertheless, the EEOC has made it clear that long COVID can be a disability, and employers may need to accommodate employees accordingly. You do not want to be stuck with excessive leave or remote work requests, but a disability discrimination lawsuit might be worse.
For assistance with crafting policies on disability identification and handling requests for accommodation and FMLA leave, please contact the authors of this article or any other attorney in Venable’s Labor and Employment Group.