An employee experiencing brain fog might be more productive with a quiet workspace, with noise-canceling or white noise aids, flow charts and checklists, uninterrupted work time, or short breaks.
Employers could also alter the way essential jobs are performed, or remove “marginal tasks” that could be a small part of the job but that might have an impact on an employee’s health.
Taryn Mackenzie Williams, assistant U.S. secretary of labor for disability employment policy, said that as millions of people have reported throughout the last year and a half that they are unemployed because of the pandemic, it’s significantly important to help long COVID patients and other people with disabilities remain in the workforce.
“We believe strongly that individuals facing long COVID are valued members of our nation’s workforce … and we are committed to supporting them so that they can stay in the workforce,” she said. “We think it’s the right thing to do for workers and families. We think it’s the smart thing to do for our economy. And it’s also the law because, like other chronic health conditions, people with long COVID may be protected by the ADA. And so we will continue to get that message out to employees and employers as frequently as we can.”
The law does not include a list of medical conditions that constitute disabilities. Disability is intentionally defined broadly to ensure that people with chronic medical conditions, such as asthma, diabetes, or mental health conditions, can be protected under the ADA and request accommodations. The ADA defines a disability as something that substantially limits one or more major life activities.
“The symptoms of long COVID — shortness of breath with exertion, extreme fatigue, brain fog, for example — in those cases, some individuals who have those types of limitations may need to request those accommodations under the law,” said Tracie DeFreitas, principal consultant and ADA specialist for the Job Accommodation Network.
“Even if long COVID is temporary, the individual might still qualify under the ADA, even though there’s not a list of conditions — it’s not necessarily that there’s a duration that a condition must last in order to be an ADA disability,” DeFreitas said. “But someone could qualify if they have temporary limitations related to long COVID, if they’re sufficiently severe. Also, it’s important to note that even if someone doesn’t think of themselves as having an ADA disability, that they might meet the definition of disability under the law. If someone believes they need accommodations, they can certainly leverage the ADA to try to have those changes made in the work environment.”
Employers are seeking out information about long COVID to learn more about how they can best serve their employees, she said. Long COVID symptoms can vary from person to person, and they can evolve and change over time. So it’s important for employers to be flexible and understanding, she added.
“Understand where they are currently with their symptoms, their limitations, and know that that can change. It could get better. It could get worse, and every day is different. The right accommodations will depend on someone’s symptoms, their limitations, the job tasks, and the individual’s particular needs,” DeFreitas said.
“If there is a change, certainly an individual could let the employer know that there is a change in their symptoms, whether that’s an improvement or whether symptoms seem to be affecting the individual in a different way than what was originally discussed, to look at what accommodations might be relevant at that time,” she said.
“It’s important to recognize that this is still something that’s new. We’re still learning how it is affecting individuals in the work environment and to be able to work together to come up with solutions, because we want to try to work toward the goal of ensuring that people can continue to work if they are experiencing symptoms related to long COVID.”
If an employer denies an accommodation request or decides that an employee doesn’t have a disability under the ADA, there are some steps the employee can take, DeFreitas said. Communication is key, she noted.
“If they’re working with the employer, we certainly encourage that they try to find out a little bit more about why their accommodation request was denied. Can they offer the employer some additional information about their symptoms, their limitations, or why they need accommodations? Sometimes, there’s just a misunderstanding about why an accommodation might enable someone to continue working,” DeFreitas said.
“It’s really a process about working together, the individual and the employer, to come up with solutions and see what’s going to be reasonable, what’s feasible, what’s plausible, in terms of enabling that person to hopefully continue working with the symptoms and limitations they’re experiencing because of long COVID.”
If for some reason employees believe they have been discriminated against or not accommodated in the work environment after requesting accommodation, there is recourse, DeFreitas said. The Job Accommodation Network can help individuals who believe their rights have not been granted by an employer.
Sometimes, it’s possible to go through an appeal process to find out about alternative accommodations. If the issue still isn’t resolved, an employee can seek help from a protection advocacy agency, or file a formal complaint through the Equal Employment Opportunity Commission. That should be the last resort, DeFreitas said.
A person with a disability who is going through the hiring process also has rights under the ADA. There is no duty to disclose the disability or request accommodation during the interview process, however.