Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557 (July 26, 2021)
HHS has issued guidance advising that “long COVID” can be a disability under Titles II (state and local government) and III (public accommodations) of the Americans with Disabilities Act (ADA) and Section 1557 of the Affordable Care Act. Referring to individuals who continue to experience COVID-19 symptoms months after first being infected, or who have new or recurring symptoms at a later time, the guidance explains that long COVID can be a disability under the ADA and Section 1557 if it substantially limits one or more major life activities. The guidance warns that individuals with long COVID that qualifies as a disability are entitled to the same protections from discrimination as any other persons with disabilities under the ADA and Section 1557. The guidance notes that it does not address examples of reasonable accommodation or nondiscrimination in employment under Title I of the ADA—adding that employment issues related to COVID-19 are discussed in previous EEOC guidance (see our Checkpoint article)—but states that the ADA’s definition of disability applies to all parts of the ADA.
EBIA Comment: For employee benefit purposes, this HHS release (issued on the ADA’s 31st anniversary) primarily serves as a reminder of the EEOC’s COVID-19-related guidance. Although the EEOC has not yet addressed long COVID, the DOL has stated on its website that employees experiencing long COVID may be entitled to workplace accommodations under the ADA. Employers should ensure that benefit plans and wellness programs do not discriminate against individuals who have this condition. For more information, see EBIA’s Group Health Plan Mandates manual at Sections XVI (“COVID-19: Mandated Coverage and Other Requirements”), XX.C (“What Is a Disability Under the ADA?”), and XXI.M.1 (“Interaction of Title VII and Section 1557”). See also EBIA’s Health Care Reform manual at Section XXXIV.A (“Section 1557 Nondiscrimination: Grounds Prohibited Under Federal Laws”).
Contributing Editors: EBIA Staff.
