Tag Archives: Americans With Disabilities Act

“Long COVID” as a Disability Under the Americans with Disabilities Act, Section 504, and Section 1557

August 5, 2021 By in Coronavirus, Federal Agencies, MEDical Tags: , , , , , , ,

 

 

Late last month, HHS/Office of Civil Rights and DOJ/Civil Rights Division Disability Rights Section released its guidance for “long COVID” or “long haulers”.

Although many people with COVID-19 get better within weeks, some people continue to experience symptoms that can last months after first being infected, or may have new or recurring symptoms at a later time.1 This can happen to anyone who has had COVID-19, even if the initial illness was mild. People with this condition are sometimes called “long-haulers.” This condition is known as “long COVID.”2

The new guidance explains that long COVID can be a disability under the ADA, Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Affordable Care Act, and explains how these laws may apply. Each of these federal laws protects people with disabilities from discrimination.

1. What is long COVID and what are its symptoms?

According to the Centers for Disease Control and Prevention (CDC), people with long COVID have a range of new or ongoing symptoms that can last weeks or months after they are infected with the virus that causes COVID-19 and that can worsen with physical or mental activity.8 Examples of common symptoms of long COVID include:

• Tiredness or fatigue
• Difficulty thinking or concentrating (sometimes called “brain fog”)
• Shortness of breath or difficulty breathing
• Headache
• Dizziness on standing
• Fast-beating or pounding heart (known as heart palpitations)
• Chest pain
• Cough
• Joint or muscle pain
• Depression or anxiety
• Fever
• Loss of taste or smell

This list is not exhaustive. Some people also experience damage to multiple organs including the heart, lungs, kidneys, skin, and brain.

2. Can long COVID be a disability under the ADA, Section 504, and Section 1557?

Yes, long COVID can be a disability under the ADA, Section 504, and Section 1557 if it substantially limits one or more major life activities.9 These laws and their related rules define a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual (“actual disability”); a person with a record of such an impairment (“record of”); or a person who is regarded as having such an impairment (“regarded as”).10 A person with long COVID has a disability if the person’s condition or any of its symptoms is a “physical or mental” impairment that “substantially limits” one or more major life activities. This guidance addresses the “actual disability” part of the disability definition. The definition also covers individuals with a “record of” a substantially limiting impairment or those “regarded as” having a physical impairment (whether substantially limiting or not). This document does not address the “record of” or “regarded as” parts of the disability definition, which may also be relevant to claims regarding long COVID.

a. Long COVID is a physical or mental impairment

A physical impairment includes any physiological disorder or condition affecting one or more body systems, including, among others, the neurological, respiratory, cardiovascular, and circulatory systems. A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness.11 Long COVID is a physiological condition affecting one or more body systems. For example, some people with long COVID experience:

• Lung damage
• Heart damage, including inflammation of the heart muscle
• Kidney damage
• Neurological damage
• Damage to the circulatory system resulting in poor blood flow
• Lingering emotional illness and other mental health conditions

Accordingly, long COVID is a physical or mental impairment under the ADA, Section 504, and Section 1557.12

b. Long COVID can substantially limit one or more major life activities

“Major life activities” include a wide range of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working. The term also includes the operation of a major bodily function, such as the functions of the immune system,
cardiovascular system, neurological system, circulatory system, or the operation of an organ. The term “substantially limits” is construed broadly under these laws and should not demand extensive analysis. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not need to be severe, permanent, or long-term. Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active. Long COVID can substantially limit a major life activity. The situations in which an individual with long COVID might be substantially limited in a major life activity are diverse. Among possible examples, some include:

• A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
• A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
• A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.

Read more here.

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Burn Bag: Sharing COVID-Positive Employees’ Information May be Prohibited Under ADA and EEO Regulations

August 27, 2020 By in Congress, Coronavirus, EEOC, MEDical, Privacy, Regulations, State Department Tags: , , , , , , , ,
Via Burn Bag:
“The Department has numerous required trainings for supervisors.  Yet, some continue to disregard them.  This behavior can create costly lessons for the Department, especially when it touches upon ADA and EEO regulations.
A supervisor recently emailed several individuals the full name of an employee – from a different team/office – who tested positive for COVID.  Our understanding is that the supervisor should have omitted the employee’s name per federal ADA/EEO regulations.  We do not know if the employee is aware of this supervisor’s actions, but based on previous experiences, this supervisor will retaliate if we inform the employee, EX, or S/OCR.
 Since we do not have an anonymous EEO reporting process, we ask the Department institute a mandatory training for all Bureau and posts for all supervisors, FSOs, FSSs, CSs, EFMs, contractors, detailees, and others to learn about federal EEO/ADA regulations for COVID-related matters.
 Returning to this supervisor, s/he has averaged approximately one EEO violation per month towards various individuals (with his/her leadership’s knowledge).  Yet the Department allows this supervisor to remain.  We’d like to remind the Department that it has the authority to proactively manage supervisors without waiting for numerous costly and time-consuming ADA/EEO complaints.  Employees (on their personal time) are also allowed to inform their Senators and Congressmen of the Department’s compliance with ADA/EEO regulations.”

Addendum:

“We understand that S/OCR will soon be drafting the 2020 MD-715, an annual status report of the Department’s EEO/ADA programs, which should include COVID-related actions.  We are curious to learn how it may acknowledge that 1) supervisor(s) may be in ongoing non-compliance with EEO/ADA regulations, 2) the Department appears to maintain supervisors in their same roles and 3) this continued non-compliance directly hurts retention and advancement of employees with disabilities.”

 

White Cat on Grass Field by Pixabay

OPM: Protect Employee Privacy Interests During COVID-19

August 27, 2020 By in Coronavirus, Federal Agencies, Leadership and Management, MEDical, Regulations, Trends Tags: , , , ,
Via OPM:

Under what circumstances should an agency communicate to its employees that there is a confirmed case among one or more of its employees (without identifying the person/specific office)?

The infected employee’s privacy should be protected to the greatest extent possible; therefore, his or her identity should not be disclosed. In an outbreak of quarantinable communicable disease or COVID-19, management should share only that information determined to be necessary to protect the health of the employees in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).
Supervisors should consult with their agency general counsel to determine what information is releasable. Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure at https://www.cdc.gov/coronavirus/2019-ncov/hcp/assess-manage-risk.html.
If social distancing, information sharing, or other precautions to assist employees in recognizing symptoms or reducing the spread of the illness can be taken without disclosing information related to a specific employee, that is the preferred approach. Managers should work with their workplace safety contacts and local health officials to stay apprised of information regarding transmission of the illness and precautions that should be taken to reduce the spread of influenza or any other contagious disease in the workplace. Managers should treat this as they would any other illness in the workplace and continue to protect employee privacy interests while providing sufficient information to all employees related to protecting themselves against the spread of illness.
Source: (PDF)

@StateDept Did Not Comply With Americans With Disabilities Act (ADA) Requirements

July 29, 2020 By in Awards, Foreign Service, Grievance, MEDical, Org Life, Pompeo, Realities of the FS, State Department Tags: , , , , , ,

 

Via FSGB: FSGB Case No. 2018-003
HELD – The Board granted grievant’s appeal, finding that the U.S. Department of State (Department) did not comply with the requirements of the Americans With Disabilities Act (ADA) when it failed to provide grievant with a reasonable accommodation for her disability. The Board directed, among other things, that the parties engage in the interactive process required under the ADA to determine a reasonable accommodation.
SUMMARY – Due to a lengthy illness with cancer grievant, while serving on a limited noncareer appointment in the consular skill code, did not receive an Employee Evaluation Report (EER) from an overseas posting. A Commissioning and Tenure Board (CTB) deferred a decision on tenure until she was able to be appraised on her performance at an overseas posting. The Department assigned grievant to an overseas posting to enable her to receive such an EER. However, as a consequence of her chemotherapy, grievant experienced neuropathy in her hands, and she developed an allergy to nickel. Accordingly, she requested that she be permanently reassigned assigned to the economic skill code, which she said would require handling a smaller volume of materials. The Department denied that accommodation request but did provide her with special office equipment that it said would address her nickel allergy. Grievant continued to experience neuropathy during her overseas assignment and was medically curtailed from post without receiving an EER. As a result, her next CTB recommended that she not receive tenure, and the Department terminated her appointment. The Board held that the Department failed to meet the requirement under the ADA and Department regulations to engage with an employee with a qualifying disability, such as grievant, in an “interactive process” to determine a reasonable accommodation. Although grievant’s request to be permanently reassigned to another skill code would be a “last resort” under Department regulations, that did not relieve the Department of the duty to consider other options such as assigning grievant to positions in the consular skill code that did not involve processing large numbers of passport and visa applications. Further, the Department had an ongoing duty to find a reasonable accommodation when it became clear that the accommodation it did provide was not effective. Accordingly, the Board directed that when grievant was cleared medically to serve in an overseas posting, the parties engage in the interactive process to identify an effective accommodation for grievant’s disability.