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Long COVID is a new disability affecting millions of workers—and a ‘moment of essential innovation’ for employers, one lawyer contends

June 5, 2022, 9:00 AM UTC

It’s not every day that a new disability emerges, perhaps permanently altering a large swath of the workforce.

Then again, it’s not every day that a new pathogen bursts onto the scene, killing millions.

For most, there is life after COVID. But for millions of survivors, that life may include disability—an unfamiliar world for them and their employers.

Just how “long COVID” is defined depends on whom you talk to, with symptoms and timelines of onset varying. Whatever it is, it may already affect between 7 million and 23 million Americans who previously had the virus—up to 7% of the U.S. population, according to the U.S. Government Accountability Office.

The silver lining, says University of Pennsylvania law professor Jasmine Harris, is that the nascent condition presents employers with a “moment of essential innovation—rethinking the workplace, both in terms of how we do business and how we come together in a work environment.”

What might be legally required accommodations for some—like ergonomic work equipment and flex time—might boost morale and productivity for all, Harris says. What’s more, the time for companies to consider such things is now—before an onslaught of litigation.

“Employers can be thinking across the workplace of what might be best practices for employees generally,” she says, “and what innovations might come out of disability accommodations they’ve seen.”

No slam-dunk diagnosis

No one medical condition—long COVID included—is a ticket to accommodations under the Americans With Disabilities Act of 1990, Harris says.

That’s because the court’s definition of a disability differs from the medical definition one. It’s undoubtedly complicated by the fact that medical professionals are struggling to determine what long COVID is, with many experts theorizing it’s an umbrella term for multiple conditions.

Under the ADA, a person with a disability is defined as “someone who has a physical or mental impairment that substantially limits one or more major life activities,” Harris says. “There’s no set list of disabilities that employers, employees, or courts will go to and say, ‘These are all covered disabilities that would make a person entitled to protection under the ADA.’”

One medical condition might affect different individuals to different degrees—like asthma, which is mild in some and severe in others. This is perhaps even more true with long COVID, for which more than 200 symptoms have been documented—everything from persistent fatigue, cough, and lack of taste and smell, to hallucinations, erectile dysfunction, inability to record new memories, and a feeling of “brain on fire.”

Even the simplest of long COVID cases—persistent fatigue, thought to be one of the most common symptoms—is not a slam-dunk case for disability definition under the ADA. “We’d have to know more,” Harris says. “Does it substantially limit one or more major life activities, like thinking, walking, and in some cases, employment?”

Long COVID is generally an “invisible disability”—one that doesn’t involve wheelchairs, crutches, service animals, or any other telltale signs. Such disabilities may be called into question by employers and are sometimes harder to prove.

“With long COVID, you can’t really see it. Can you document it?” Harris asks. There’s a fear among employers that “people are going to take advantage of, abuse this law and that it’s really going to be rampant. This will continue to plague disability law.”

“Reasonable” accommodations for “essential” duties

Employees who are found to have a disabling condition are eligible for “reasonable” workplace accommodations if they can still perform “essential functions” of their job—the duties they were hired to perform, not any extra duties accumulated along the way, Harris says.

“Save the job description when you apply for a job,” she advises. “That’s what the employer has a right to be concerned about: Can the employee perform the job they were hired to do?” 

She continues, “The ADA says an employee remains qualified as long as they can perform those essential functions—with or without a reasonable accommodation.”

At that point, a negotiation between employer and employee ensues.

“It’s an interactive process,” Harris says, citing the example of a person with COVID-induced chronic fatigue. “You might say, ‘I can’t do eight or nine hours straight of phone calls in the office with presentations, but what I can do, if you give me flex time, is still see my doctor and get the job done—it’s just going to look a bit different.

“Employers might say, ‘But the job requires you to be in the office,’” Harris says. But court cases will begin to show “how much of the actual job requires presence,” she adds.

More than two years into the pandemic, “work looks different now,” she says. “The law is going to be more malleable. It’s time that if you have in-house compliance units, to really focus on what this may mean for ADA compliance.”

Some accommodations are “just good business practice”

The advent of a new, widespread disability is “a real opportunity” for employers to “get ahead of what’s going to come down the pipe,” Harris says. “Instead of waiting for lawsuits, compliance departments can think creatively and examine their policies and offer greater flexibility across the board.”

It’s a notion called “universal design,” she says—and it predates COVID.

She cites carpal tunnel syndrome—“a big deal in offices.” A reasonable accommodation would be a sit/stand desk and ergonomic equipment.

“The way disability law currently operates is that if you need a reasonable accommodation, you come to the HR department, you start that process—you submit the form, they’ll do paperwork,” she says.

But such a process could “breed discontent” among other workers, who may wonder, “Why does Jenny have a sit/stand desk? Why don’t I?”

“If you’re the employer, you can understand that a sit/stand desk and ergonomic equipment is just good business practice, and at the end of the day, may be more cost effective.”

Offering accommodations like flex time and remote work to all employees can promote a sense of community, boost morale, and enhance retention, Harris says.

Employers can invest copious amounts of time determining whether an employee is qualified to work from home, but “that time can be better spent,” she contends, “reallocated to preemptive policy reformation.”

“When the pandemic hit, this need for documentation went out the window. Suddenly, we were able to trust the individual’s word as they required a little bit of extra time, or to appear remotely,” she says, adding that the pandemic proved that “people are actually quite productive from home” and fears of rampant time fraud were unfounded.

“From an employer perspective, having lawyers draft up a form to give to medical providers that is within the bounds of the ADA requires time and money,” Harris says.

So does fostering “a climate of trust and mutual respect.”

“The question is, how do employers want to allocate time and money going forward?”

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