We all have endured the past few years combatting COVID-19, whether as a healthcare employee or in another employment role.

For many of those who have contracted the virus, the effects of COVID-19 long-haul symptoms have brought about life-long changes. In turn, these changes have affected human resources practices for employees who suffer from these symptoms. Employers now have the responsibility to protect their employees who exhibit long-haul symptoms; protection for these employees comes on several levels.

First, the employee who has tested positive has the right to have his or her privacy protected, just like with any other health-related topic. As an employer, it is your duty to communicate to other staff members that one of their colleagues has tested positive, but the privacy of the affected employee must remain intact. Although other employees need to know how to mitigate the risk of contracting the virus, they do not need to know from whom the risk originated. Additionally, the affected employee must be provided the support needed to recover and ultimately return to work; however, those affected by long-haul symptoms have a different and increased set of needs.

Because “long-haulers” may have a variety of symptoms — such as lingering breathing issues, brain fog and/or chronic pain and fatigue — those symptoms may rise to the level of a disability under the Americans with Disabilities Act (ADA). Although there is no checklist for long-haul symptoms, what is pertinent is establishing whether a person has a physical or mental impairment that “substantially limits” one or more of major life activities.

According to Department of Justice and Department of Health and Human Services guidance from July, “substantially limits” should be interpreted broadly and should not demand extensive analysis. Examples of situations in which a COVID-19 long-hauler might be substantially limited in a major life activity:

  • A person who has lung damage that causes shortness of breath, fatigue and related effects is substantially limited in respiratory function, among other major life activities.
  • A person who has symptoms of intestinal pain, vomiting and nausea that have lingered for months is substantially limited in gastrointestinal function.
  • A person who experiences memory lapses and brain fog is substantially limited in brain function, concentrating, and thinking.

Evaluation of any ADA protection, of course, would require an assessment from a healthcare professional.

Accommodations by the employer for the employee also may be a consideration when long-haul symptoms are involved. Employers must assess the requested accommodation for several factors, such as cost to the organization; the size of the organization, including number of employees; and the overall effect on the organization’s operations. Accommodation options could include remote work, if possible; potential part-time work; or job duty realignment. Reviewing short-term leave options and disability plans is a must when it comes to working with an employee who has long-haul symptoms from COVID-19.

An additional consideration for these affected employees may fall under the Family Medical Leave Act in addition to protection under ADA. For those employees who experience long-haul symptoms but recover more quickly (perhaps in two to four weeks), ADA consideration may not be applicable, but the FMLA guidelines may be considered. Employers must know and understand the guidelines of FMLA to assist the affected employee in the best possible manner.

As explained in a December Society for Human Resources Management article by Lisa Nagele-Piazza, the Equal Employment Opportunity Commission reminds employers that residual effects of long-haul COVID-19 symptoms must meet the three-part definition of a disability just as any other disability afforded protection under the ADA:

  • An actual disability, which is a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing or hearing).
  • A history or record of an actual disability (such as cancer that is in remission).
  • A perception that a worker has a disability or is regarded as having a disability.

Long-haul symptoms may worsen over time, which eventually could lead to consideration for coverage under the ADA. As previously mentioned, those symptoms include heart conditions with worsening effects, long lingering intestinal complications, prolonged breathing issues or the inability to think clearly due to brain fog brought on from COVID-19.

The EEOC also provides employees with protection under the law for discrimination. Employees with long-haul COVID-19 symptoms are no exception to the no-discrimination rule. Those employees should not be treated adversely related to policies such as absenteeism or be treated differently when requesting accommodations to perform their jobs.

The pandemic has proven to be a unique challenge for human resources professionals in the workplace; however, it is important that employees who suffer from long-haul COVID-19 symptoms be handled appropriately under ADA, FMLA and in accordance with EEOC laws.

Cathy R. Benfer MS, PHR, NHA, is manager of recruitment services for LW Consulting Inc., which for almost two decades has worked to deliver operational and compliance improvements to acute, post-acute and sub-acute providers and government entities involved in healthcare.

The opinions expressed in each McKnight’s Senior Living marketplace column are those of the author and are not necessarily those of McKnight’s Senior Living.

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