Getting Back to Work After COVID-19: Lingering Symptoms Present Challenges for Employers and the ADA

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With more than 6 million cases and counting in the U.S., the coronavirus has profoundly affected American life and health. Some COVID-19 patients have incurred permanent damage to their hearts, kidneys, lungs or brain as a result of the infection; many without such serious complications are still struggling to regain their vitality. A study of recovered COVID patients in the U.S., U.K. and Sweden who used an app to self-report symptoms found that 10-15% of them were experiencing ongoing health issues ranging from extreme fatigue and brain fog to achy joints and racing heartbeat. Others report experiencing mental health issues such as severe anxiety, depression and post-traumatic stress disorder. These various symptoms have been dubbed Post-COVID Syndrome.

“Disability isn’t static. It’s dynamic and what causes it is unpredictable,” says Robin Jones, Director of the Great Lakes ADA Center in Chicago, which advises employers and people with disabilities about the Americans with Disabilities Act (ADA). “This pandemic has brought home the fact that society will have things occur that negatively impact people to the point where we have a new group of people with disabilities.”

As some U.S. companies plan to move their workforces back to the office this fall and even more contemplating it in 2021, that means a whole new cohort of U.S. workers will be seeking workplace accommodations under the ADA. The 1990 law protects people with disabilities from employment discrimination and requires that employers with more than 15 workers make “reasonable accommodations” to help them continue working. A disability is a condition that interferes with a major life activity such as breathing, performing manual tasks, concentrating, communicating, sleeping or hearing. The 2008 ADA Amendments Act expanded the list to cover conditions that interfere with bodily functions such as the immune, circulatory and neurological systems. Simply having COVID-19 wouldn’t qualify someone for an accommodation under the ADA but many of the common after-effects would, experts say.

Government officials, human resources professionals and disability nonprofit groups are bracing for what could arguably be called one of the most difficult periods in the ADA’s 30-year history. “COVID is a gigantic challenge for employers, providers, employees and for people looking for work. It’s unprecedented really,” says Wendy Strobel Gower, Program Director of the K. Lisa Yang and Hock E. Tan Institute on Employment and Disability at Cornell University in Ithaca, New York.

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One issue is that many people who recovered from COVID never saw a doctor and don’t have any documentation to back up their disability claim. In August, Lou Orslene, Director of the Employer and Workforce Policy Team in the Office of Disability Employment Policy at the U.S. Department of Labor (DOL), was the featured speaker at a virtual seminar presented by the Center for Rehabilitation Outcomes Research (CROR) at the Shirley Ryan AbilityLab in collaboration with the nonprofit Disability:IN Chicagoland and sponsored by the  National Institute on Disability, Independent Living, and Rehabilitation Research. The seminar, which attracted more than 100 participants, aimed at human resource professionals, laid out guidelines and best practices for dealing with COVID-related accommodation requests. During the seminar, Orslene urged employers to “show good faith” by issuing temporary accommodations to employees while waiting for formal documentation to come through.

However, it won’t just be COVID survivors who are asking for accommodations, ADA experts predict. Another affected group of workers is those at higher risk of complications if they contract the virus. This could include those with chronic conditions such as heart or lung disease, diabetes, and people on immune-suppressing drugs for a range of conditions such as lupus and Crohn’s disease. Some of these people have never disclosed their conditions to their employers because they didn’t previously need accommodations to do their jobs. But now they may feel compelled to do so because their condition puts them at greater risk in an office or factory setting, Jones says. The U.S. Equal Employment Opportunity Commission (EEOC) has already determined that employees can request accommodations related to their risk of contracting COVID-19. However, to be covered by the ADA, people must have an actual disability as defined under the law. Being a caregiver or living with someone who has a disability that puts them at higher risk from COVID is not enough. (Although those people have legitimate concerns, they aren’t covered by the ADA, experts say; they do have the option of taking unpaid leave under the Family and Medical Leave Act.)

There also may be a large subset of these people who have mental health-related disabilities who have never disclosed their diagnosis to their employer because of the fear of stigma. But now they may need an accommodation to return to work. For example, someone with a diagnosis of generalized anxiety disorder might find their concerns about the pandemic have turned into an obsessive-compulsive disorder around cleanliness that would make working around other people problematic. Someone with lung disease or an anxiety disorder like claustrophobia may be unable to comply with a company mandate that all employees wear masks at work. (That’s different from someone who doesn’t want to wear a mask as a political statement, disability experts say, in which case the ADA wouldn’t apply.)

In the past, having a large group of employees seek workplace accommodations at the same time would have been a cause for consternation among U.S. businesses. Currently, companies are being asked to deal with a bevy of new rules from a collection of government agencies ranging from the Occupational Safety and Health Administration to the Centers for Disease Control and Prevention to the EEOC. But the spring and summer months after the U.S. locked down in March have given employers the chance to prepare, disability experts say. “Some companies are in a good position with well-established accommodation plans. They know who will do the work and how to handle the request. These tend to be the bigger companies,” says Strobel Gower. “Some smaller companies may struggle because they don’t really understand the whole disability thing. They may want to say yes but if their whole workforce doesn’t want to come in, they can’t function. Companies that haven’t thought through a reasonable accommodation policy are going to be struggling with this.”

Many employers have long resisted employees’ requests to work part-time or from home for a range of disabilities, saying they would involve a major change in company policy. But CROR Director Allen Heinemann, PhD, hopes that reluctance may now be lessened. “With an estimated 40% of people working from home, we’re gathering more evidence about how productive people can be. That should assuage some employers’ concerns that they have to breathe down their employees’ necks to get work done,” he says. “Flexible hours and working from home are such a frequently requested accommodation that it could play out very well.” Still, working from home is not an option for the majority of the U.S. workforce, particularly those in the public safety, manufacturing and retail industries.

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In the short term, the DOL is advising employers to take a flexible approach to dealing with COVID-related accommodation requests. Companies that may be reluctant to allow people to work from home after their offices return to work needn’t be overly concerned about setting a precedent because what they do to cope with the pandemic won’t be viewed as permanent, disability experts say. Still, Strobel Gower expects that the strident political climate around the pandemic will find its way into some workplaces. “I think some people are going to be absolutely wonderful and understand the difficulty that COVID-19 is presenting, and some people are going to be terrible,” she says. “As employers and professionals, the most important thing to remember is whether you embrace the idea of COVID-19 and masks, you have a duty to accommodate your employees and make sure they can do their job.”