As the COVID pandemic stretches on, employers are increasingly likely to encounter not only employees who have tested positive for the virus but also employees who continue to experience symptoms long after they have tested negative. These individuals—known as “long haulers”—report experiencing a wide range of symptoms, including but not limited to chronic cough, difficulty breathing, muscle pain, chronic fatigue, and “brain fog.” Are such employees “disabled” under the Americans with Disabilities Act (“ADA”) and therefore entitled to reasonable workplace accommodations? Although there is not a clear-cut answer, employers who refuse to consider whether such employees are protected by the ADA put themselves at significant risk.
Under the ADA, a “disability” may take any of the following forms: (1) “a physical or mental impairment that substantially limits one or more major life activities”; (2) “a record of such an impairment”; or (3) “being regarded as having such an impairment.” The ADA explains that “major life activities” “include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”
In 2008, Congress broadened the definition of “disability” by enacting the ADA Amendments Act of 2008, and the Equal Employment Opportunity Commission (“EEOC”) thereafter adopted regulations clarifying that “[t]he term ‘substantially limits’ shall be construed broadly in favor of expansive coverage” and that the term is “not meant to be a demanding standard.” The EEOC regulations also expressly provide that “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of proving an actual disability.
According to the appendix to the EEOC regulations, the “duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity.” Although “[i]mpairments that last only for a short period of time are typically not covered,” they may be covered “if sufficiently severe.” The EEOC appendix illustrates these principles: “[I]f an individual has a back impairment that results in a 20–pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability.”
In Summers v. Altarum Institute Corp., 740 F.3d 325 (4th Cir. 2014), the Fourth Circuit Court of Appeals, which has jurisdiction over the mid-Atlantic states including Maryland, held that an employee who suffered fractures and/or tendon tears in both of his legs after a fall and who would not be able to walk normally for at least seven months, sufficiently plead that he had a “disability” under the ADA, reasoning that, “[i]f, as the EEOC has concluded, a person who cannot lift more than twenty pounds for ‘several months’ is sufficiently impaired to be disabled within the meaning of the amended Act, then surely a person whose broken legs and injured tendons render him completely immobile for more than seven months is also disabled.” In so holding, the court overruled the trial court judge who had ruled that the employee was not disabled because his injuries were temporary and he expected to heal within a year. The court further criticized the trial court’s reasoning that, because the employee could have worked with a wheelchair, he must not have been disabled, concluding that “the ADA would be eviscerated” if such “inverted” reasoning were allowed to stand.
Given the forcefulness of the Summers decision and that some of the symptoms that “long haulers” describe fall within the ADA’s broadly construed definition of “major life activities,” it is likely that at least some, if not many, “long haulers” will satisfy the ADA’s “disability” definition. As such, employers will need to engage in the “interactive process” under the ADA and, in Maryland, the more comprehensive “individualized assessment” under the Maryland Fair Employment Practices Act, in order to meet their obligations and avoid liability.
Andrew Scott is a Member of PK Law and part of the firm’s Labor and Employment Group. He represents private sector employers and public schools before federal and state courts, federal and state civil rights agencies, and the Maryland Office of Administrative Hearings on a variety of matters, including employment discrimination litigation, collective bargaining, teacher and student discipline, construction and procurement, and wage and hour claims. Mr. Scott also advises clients on the design and implementation of employment agreements, employee handbooks, policies and procedures. Mr. Scott can be reached at 410-339-6744 or firstname.lastname@example.org.