WORKER WITH ‘LONG COVID’ MAY QUALIFY ACCOMMODATION UNDER ADA
QUESTION: Last February I became infected with Covid-19. I felt lousy for a couple of weeks, and then improved, but I never really got better. I feel tired most of the time, my arms and legs hurt and, especially after several hours of work, I have a really hard time concentrating. I was out of work on unpaid leave for a couple of months, then worked from home, less than full-time until the end of July when my boss insisted I return to the office. I have really struggled since then, and am on the verge of being terminated for repeated tardiness. I have asked my boss if I couldn’t go back to working from home. My schedule wasn’t 9-to-5, but I was able to take breaks when the fatigue overwhelmed me. He said I need to find a way to deal with my issues because he wants me to be available during regular business hours. If I have to work a regular shift at the office, I know I’ll be fired in no time. Any advice?
ANSWER: From the symptoms you describe, it sounds like you have “long Covid.” According to the Mayo Clinic, some people – especially those who are older or who have underlying health conditions – may experience symptoms long after they’ve recovered from Covid. Common symptoms of long Covid include fatigue, shortness of breath or difficulty breathing, joint pain, chest pain, trouble sleeping, difficulty concentrating, memory problems, muscle pain or headache, a fast heartbeat, and loss of smell or taste. In the worst cases, damage to the heart and lungs from the original illness is permanent.
The only bright light in this pretty dark picture is that – if your employer has at least 15 employees — you might be eligible for protection under the Americans with Disabilities Act (ADA). The Department of Justice and the Equal Opportunity Employment Commission recently released guidance explaining that long Covid may qualify as a disability for purposes of the ADA as a “physical or mental impairment that substantially limits one or major life activities.” Michigan has a similar statute that protects workers where the employer has one or more employees on the payroll.
What this means is that your employer must work with you, engaging in an “interactive process” to determine if there is a reasonable accommodation that might be offered that will allow you to do your job, without causing your employer any “undue hardship.” “Undue hardship” means more than mere inconvenience; granting the accommodation must have a significant disruption to an employer’s operation. An accommodation may be unreasonable if it prevents other workers from doing their jobs, or requires a co-worker to take on essential elements of the disabled worker’s job, or if the cost of the requested accommodation is prohibitive. For instance, a deaf worker’s request that an employer hire a sign language interpreter to translate all meetings might be cost-prohibitive, but a request for written minutes of the meetings might be viewed as a reasonable accommodation.
Unless your employer has additional evidence, the fact that you worked from home for several months is an indication that this may be a reasonable accommodation – as long as you were able to perform all the essential elements of your job and keep up with your work. According to a December 2020 PEW Research survey of employed adults who were working from home, 80 percent stated they had no trouble meeting deadlines and completing projects on time. Even if your boss has a good reason for wanting you at the office or available during regular business hours, his failure to discuss options that might meet both your employer’s needs and your needs is itself a violation of the ADA, and you could sue both your boss and your employer under the Act.
That drastic step however, assumes that you are discharged. Before that happens, you also have a duty to engage in the interactive process and consider whether something less than a complete retreat to remote work might meet your needs. You may want to speak to a lawyer to discuss your options.
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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084
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