‘Long Covid’ Is Now A Protected Anti-Discriminatory Disability Under The ADA: What Does That Mean?

July 27, 2021

By a Biometrica staffer

On Monday, July 26, the United States government said it will not be lifting existing travel restrictions due to concerns over the highly transmissible delta variant of Covid-19 and the rising number of coronavirus cases in the country, Reuters reported. The Covid-19 pandemic is by no means over, and this news confirms that even further, if ever there was any doubt about it.

Even as the virus continues to evolve and brings forth new spikes in cases, we are still working to figure out how many aspects of life it has and will affect. We look at one such facet in today’s report: On Monday, the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) joined forces to issue a guidance on how “long Covid” can be a disability under the Americans with Disabilities Act (ADA).

This is to address the fact that some people continue to experience symptoms that can last weeks or months after first developing Covid-19. It can happen to anyone who’s had Covid-19, even if their illness was initially only mild. Those who have this condition are sometimes called “long-haulers” and the condition itself is termed “long Covid.”

Long Covid is beginning to become a persistent and significant health issue that has ramifications that spill over into the realms of anti-discrimination policies. It is with this in mind that the DOJ and the HHS published their guidance on Monday, which also happened to be the 31st anniversary of the ADA. Long Covid is now considered a disability under the ADA, Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Affordable Care Act. Each of these federal laws protects people with disabilities from discrimination.

“The ADA is one of our most transformative civil rights laws, helping to ensure that our schools, courthouses, townhalls, businesses and workplaces are open to all people, regardless of their disability status. This anniversary, we recognize the ongoing challenges to full equality, including COVID-19’s devastating and disproportionate impact on people with disabilities. As many of our neighbors find themselves with long-lasting effects from COVID-19, we are committed to making sure that people understand their rights under federal nondiscrimination laws,” said Kristen Clarke, Assistant Attorney General of the DOJ’s Civil Rights Division.

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, and that can worsen with physical or mental activity. Some of the common symptoms of long Covid include difficulty thinking or concentrating, shortness of breath or difficulty breathing, dizziness on standing, depression, tiredness and fatigue, etc. For the CDC’s full list of symptoms, click here.

When is someone considered to have a long Covid-related disability according to the guidance?

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. A physical impairment can includes any physiological disorder or condition affecting one or more body systems, including, among others, the neurological, respiratory, cardiovascular, and circulatory systems. Meanwhile, a mental impairment includes any mental or psychological disorder, such as an emotional or mental illness.

The guidance elaborates on the term “major life activities,” which it says can include a wide range of things, starting with caring for oneself and performing manual tasks to being able to perform routine activities like seeing, reading, concentrating, thinking, eating, sleeping, interacting with others, working, etc. The term “substantially limits,” it says, is construed broadly under these laws and should not be analyzed extensively, as the limitations need not be severe, permanent, or long-term. Even if the impairment comes and goes, it will still be considered a disability if it substantially limits a major life activity when it is active, the guidance adds.

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.

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. In other words, they are entitled to full and equal opportunities to participate in and enjoy all aspects of civic and commercial life. This may mean that businesses or state and local governments will sometimes need to make changes to the way they operate to accommodate an individual’s long Covid-related impairments.

“It’s critical that we ensure people who have disabilities as a result of long COVID are aware of their rights under federal nondiscrimination laws. It also is crucial that they know how to connect to services and supports available if they now need assistance to live in their own homes, go to school or work, or participate in their communities,” Acting Administrator and Assistant Secretary Alison Barkoff for Aging at the Administration for Community Living at HHS said.