DOJ, HHS Offer Tips for Avoiding ‘Long COVID’ Discrimination

Frank Ferreri

Washington, DC ( – As vaccination rates lag, the delta variant surges, and the Centers for Disease Control and Prevention urge a heightened level of masking again, COVID-19 increasingly appears that it will be a news item for the long term.

And with people who have recovered from infections experiencing symptoms months later, effects of the virus will impact some for the long haul, which has prompted the U.S. Department of Justice and the U.S. Department of Health and Human Services to issue guidance on “long COVID” as a disability under ADA Titles II and III, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act.

The guidance, which does not carry the force of law or create any new regulatory requirements, applies to:

  • Recipients of federal financial assistance (Section 504, which applies ADA standards and is enforced by DOJ).
  • State and local governments and their subagencies (ADA Title II, which is enforced by DOJ).
  • Public accommodations (ADA Title III, which is enforced by DOJ).
  • Health programs or activities that receive federal financial assistance (Section 1557, which is enforced by HHS).

The guidance doesn’t directly cover employers, which are covered by ADA Title I and are subject to Equal Employment Opportunity Commission technical assistance on COVID-19, but EEOC interpretations of disability discrimination laws commonly match those offered by DOJ.

So, what are the takeaways from the DOJ-HHS guidance? The following chart highlights key considerations from the agencies.

Disability Discrimination Emphasis Points

Agencies’ Explanations

Long COVID can be a disability if it substantially limits one or more major life activities. 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.

The agencies addressed only the “actual disability” prong of the ADA’s three-part definition of “disability.” The other two prongs – “regarded as” having a disability and having a “record of” disability – did not receive treatment in the guidance.

A physical impairment includes any physiological disorder or condition affecting one or more body systems. A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness. Some people with long COVID experience:

  • Lung damage.
  • Heart damage.
  • Kidney damage.
  • Neurological damage.
  • Lingering emotional illness.

Thus, long COVID is a physical or mental impairment under the ADA, Section 504, and Section 1557.

“Major life activities” include a wide range of activities and the term “substantially limits” is construed broadly and should not demand extensive analysis.

Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms.

Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.

The situations in which a person with long COVID might be substantially limited in a major life activity include:

  • A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function.
  • A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function.
  • A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, or thinking.
Long COVID is not always a disability. 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.
As with other disabilities, people with long COVID are entitled to full and equal opportunities to participate in and enjoy all aspects of civic and commercial life. Businesses or state or local government entities will sometimes need to make changes to accommodate a person’s long COVID-related limitations. Here are some examples of “reasonable modification” possibilities from DOJ and HHS:

  • Providing additional time on a test for a student who has difficulty concentrating.
  • Modifying procedures so a customer who finds it too tiring to stand in line can announce his presence and sit down without losing his place in line.
  • Providing refueling assistance at a gas station for a customer whose joint or muscle pain prevents her from pumping her own gas.
  • Modifying a policy to allow a person who experiences dizziness when standing to be accompanied by a service animal that is trained to stabilize the person.

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