When Does Someone Have a Long COVID Disability?

New federal policies will probably create challenges for everyone—students, employees and higher ed institutions alike—but institutions should take particular notice, Howard Pashman writes.

December 8, 2021
 
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The federal government has recently announced COVID policies that will affect how every college and university operates. The policies do not get as much attention as others that concern higher ed, such as the COVID vaccine mandate for federal contractors. Nevertheless, over the past few months, the federal government has declared its position that the long-term effects of COVID, both physical and mental, can constitute a disability under federal antidiscrimination laws such that someone suffering those effects might be entitled to a reasonable accommodation at a college or university.

Under these new policies, someone who never had the virus might still be found disabled by the long-term mental health effects of the pandemic. Someone who had an asymptomatic infection and did not know it might become disabled weeks or months later when long COVID symptoms develop. That is, they might become disabled and seek an accommodation for long COVID without ever testing positive for COVID in the first place.

Perhaps the relative lack of attention to these new policies comes from the fact that they did not appear in a grand statement of purpose or a photo op. Rather, various departments and agencies announced them piecemeal and expanded them over the course of some months. Yet despite their relative obscurity, the policies are central to the students and employees who believe that COVID has disabled them and to the colleges and universities that evaluate their requests for accommodation. The new policies will probably create challenges for everyone—students, employees and institutions alike. However, institutions should take particular notice because they, unlike students and employees, are the focus of these policies and could find themselves facing enforcement actions if they do not take heed.

A Federal Higher Ed Policy Emerges

The new federal policy toward long COVID emerged from the Centers for Disease Control and Prevention’s understanding of the condition. According to the CDC, post-COVID conditions go by a variety of names: long COVID, long-haul COVID, chronic COVID and others. They all refer to a constellation of symptoms that the CDC has found can occur four or more weeks after infection, with symptoms as variable as shortness of breath, fatigue, difficulty concentrating (“brain fog”), trouble sleeping, rashes, joint and muscle pain, mood changes, and feeling pins and needles, to name just some of them. A large international study identified more than 200 symptoms associated with long COVID that, with varying degrees of prevalence, affect 10 organ systems.

The CDC has also found that people who had asymptomatic infections can become COVID long haulers such that they may not experience any symptoms for weeks or months after infection. For such people, long COVID may be the first time they have any idea that they had the virus.

These findings are starting to affect federal policy toward higher education. Over the last few months, various federal departments and agencies have indicated that they believe long COVID can constitute a disability under federal antidiscrimination laws such as the Americans With Disabilities Act. The federal government has specifically identified colleges and universities as institutions whose employees and students may qualify as disabled, and, if they do, then such long-COVID disabilities could entitle them to reasonable accommodations.

These federal policies emerged in a series of documents released over months. In July of this year, the U.S. Departments of Health and Human Services and Justice issued joint guidance declaring that long COVID could constitute a disability under the statutes that protect disabled Americans against discrimination. This declaration does not change or amend those statutes but rather announces the federal government’s interpretation of them as protecting people whose long COVID has left them disabled. And as the joint guidance makes clear, not everyone who suffers from long COVID qualifies as disabled under federal law. Someone is disabled by long COVID only if the symptoms constitute an impairment, physical or mental, that substantially limits at least one major life activity.

Although those interpretations did not change the substance of the law, they do clearly announce the federal government’s enforcement priorities and indicate that these departments will be watching to ensure institutions carefully review disability claims and offer reasonable accommodations where appropriate. As the guidance put it, “Businesses or state or local governments [read: public colleges and universities] will sometimes need to make changes to the way that they operate to accommodate a person’s long COVID-related limitations.”

Other parts of the federal government soon followed suit. In September, the Equal Employment Opportunity Commission adopted the reasoning in the joint guidance and declared that long COVID may constitute a disability. Since the EEOC and the Department of Justice enforce antidiscrimination laws such as the ADA against employers, including colleges and universities, that announcement put higher ed institutions on notice that they need to evaluate their employees’ request to accommodate long COVID disabilities as they would any other request for an accommodation.

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Other departments then moved to apply these policies directly to higher ed. In October, the U.S. Department of Education issued a letter to educators that echoed the earlier guidance and expanded its scope to include the pandemic’s mental health impacts on students. The Department of Education also published, along with the Department of Justice, a fact sheet addressing educational institutions’ responsibility to help students who have suffered trauma during the pandemic. The fact sheet states that the pandemic’s terrible mental health effects on students can cause a disability that colleges and universities may have to accommodate.

The fact sheet and the October letter significantly expanded the earlier guidance on disability discrimination. Rather than focusing specifically on long COVID, which might develop after an infection, as the earlier joint guidance had done, the more recent announcements declare that COVID has long-term effects on students’ mental health, and those effects can constitute a disability even in those who were never infected. Through these various letters and guidance, the federal government has signaled its view that COVID has long-term effects on physical and mental health that might rise to the level of a disability even if the student or employee had an asymptomatic case, never tested positive for the virus or was never infected at all.

An Encouragement and a Warning

These policy announcements are no doubt reassuring to those who are suffering from long COVID as well as to the colleges and universities that want to help students and employees who find themselves disabled by long COVID. However, the announcements do not offer much guidance on the practical problems that students and employees will face in seeking an accommodation or that higher ed institutions will confront in evaluating them.

Some of these practical problems arise from the insidious nature of the virus itself. For instance, the fact that there can be asymptomatic cases could create challenges for colleges and universities in assessing requests for accommodation. Someone who had an asymptomatic infection, like many such people, might never have even known they were infected and thus never tested positive for the virus. That means they would have no medical record of an infection. But as time goes on, that person might develop symptoms that a doctor concludes are consistent with long COVID, leading that person to request an accommodation or seek accessibility services on campus. In fact, institutions across the country are reporting increased student demand for accessibility services. As a result, colleges and universities, along with their students and employees, may find themselves in the challenging position of evaluating a claim that someone has been disabled by long COVID even though they were never diagnosed with COVID in the first place.

Thus, a student or employee would struggle to document a long COVID disability, and colleges and universities would also struggle to evaluate requests to accommodate such disabilities because there may not be any evidence that the student or employee had the virus. Because of these circumstances, colleges and universities have to ensure that the administrators and staff who evaluate requests for accommodation are trained in these issues so that they can evaluate each request in an individualized way, without expecting the kind of paper trail that might follow other conditions.

Such difficulties are even greater for the mental health effects of the virus. The letter and fact sheet issued in October declared what many students, administrators and instructors already knew: the mental health impacts of COVID are so severe and pervasive that they have affected those who never contracted the virus and who had no prior mental health problems. The letter and fact sheet go further and state that such people might be disabled under federal law and, if so, they could be entitled to reasonable accommodation.

That recognition from the government likely seems overdue to many people. However late the recognition might be, it offers both encouragement and a warning. It is encouraging because it expands on the Department of Education’s earlier report that found that, while postsecondary students have experienced widespread mental health problems during the pandemic, those problems are not uniform. Different races and ethnicities have suffered in different ways and experienced different mental health symptoms.

That study, along with the Department of Education’s new policy on COVID disabilities, is also encouraging because they represent a real opportunity for colleges and universities to help students address mental health problems. Institutions can train instructors and staff to recognize the signs of mental health problems, make sure students are aware of resources available to them such as psychological services, and provide accommodations where needed.

But the Department of Education’s report and recent publications imply a warning, as well. Institutions should take this opportunity to develop or renew their procedures for addressing students’ mental health, particularly COVID-related mental health disabilities. Otherwise, they will be caught unprepared in a new political environment that has announced its preference for proactive policies and individualized assessments that account for all of the ways the virus has sickened and traumatized people.

For now, at least, the various federal departments and agencies that outlined this new policy appear to be content to encourage colleges and universities to address long-term COVID-related disabilities. But that encouragement could turn to enforcement before long.

Bio

Howard Pashman is an associate at the law firm of Pashman Stein Walder Hayden in New Jersey.

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