Long COVID and Employment Regulations: ADA, FMLA, State and Local Law Implications

COVID-19 vaccine distribution is well underway, and many employers are planning to return their workforce to the office safely. However, as reopening policies are established, employers and counsel should be mindful of the rise of COVID-19 "long haulers," individuals who have recovered from the coronavirus but are still suffering from continuing psychological and physical complications.

Employment counsel should consider the Americans with Disabilities Act (ADA) implications since the ADA lacks an exhaustive list of impairments covered as a disability. Each case is determined based on an individual's specific limitations on major life activities. COVID-19 long haulers are reporting various symptoms that may or may not subside despite treatment from medical professionals which may substantially limit an individual's major life activities with no sign of abatement. Employers and their counsel have to determine whether an employee's long haul symptoms amount to a disability under the ADA and what may be reasonable workplace accommodations that allow the employee to perform their job despite the long haul symptoms.

Employers and counsel must also evaluate whether an employee with long haul COVID-19 symptoms is eligible for medical leave under the Family and Medical Leave Act (FMLA), including the use of intermittent leave. Employers might have to provide a COVID-19 long hauler with some combination of FMLA leave and a reasonable workplace accommodation under the ADA, depending on the specific impairment and circumstances affecting the employee.

In addition to federal law, many states are now providing paid or unpaid leave for employees suffering from active infections and symptoms of COVID-19. Some states require that employers provide supplemental paid sick leave to employees experiencing symptoms of COVID-19 and seeking a medical diagnosis. Other states are providing paid leave for periods of quarantine associated with active COVID-19 infections but have not yet provided guidance on leave associated with long haul symptoms of COVID-19. Counsel must consider employees working remotely and what state law applies to each employee's situation.

Listen as our expert panel discusses the continued complications for employers and employees when COVID-19 symptoms remain months or years after the initial infection. The panel will address these employment issues as they arise and what possible legislative developments and guidance may be on the horizon.