As the pandemic continues, a segment of individuals who contracted COVID-19 reports that they have not experienced a quick recovery. Rather, they are continuing to suffer symptoms months after initial onset of the disease. Known as coronavirus “long-haulers,” these individuals report that they endure effects such as chronic fatigue, shortness of breath, brain fog, and other symptoms far down their road to recovery. While recuperation from a typical cold or flu lasts between 7 to 14 days, long-haulers are reportedly experiencing the consequences of COVID-19 for a far longer period and months after diagnosis.

The lengthy effects of COVID-19 for long-haulers may raise the question of whether such individuals meet the definition of an individual with a disability under the Americans with Disabilities Act (ADA). If so, companies that employ a long-hauler may want to be aware of the ADA’s requirements that prohibit discrimination and require an interactive process to determine whether the individual requires a reasonable accommodation to perform his or her essential job functions without causing the employer an undue hardship.

The ADA and its supporting regulations do not identify a precise length of time a health condition must last before it falls under the ambit of the law. A “disability” is defined by the ADA to include “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Typically, the “substantially limits” language within this definition has been interpreted to exclude conditions of a short duration and from which an individual will fully recover. References to time within the law are few and often indefinite. The clearest guide within the law is the limitation that an individual should not be “regarded as” disabled if the impairment is “transitory and minor,” which the ADA defines as “an impairment with an actual or expected duration of [six] months or less.” The ADA regulations provide that the “condition, manner, or duration” of the condition can help determine whether it substantially limits a major life activity. Further, the regulations provide that an impairment that lasts or is “expected to last less than six months can be substantially limiting.”

In 2014, the Fourth Circuit Court of Appeals became the highest appellate court to address whether a temporary condition could meet the definition of disability under the ADA. Significantly, the decision followed passage of the ADA Amendments Act of 2008 (ADAAA), which significantly broadened coverage under the ADA. The Fourth Circuit held that an individual who suffered a fractured leg with multiple torn and ruptured tendons, required multiple surgeries, and could not walk normally for at least seven months, met the ADAAA’s definition of disability. Thus, the Fourth Circuit recognized that a temporary injury, even one expected to fully heal, can qualify as a disability covered by the law. However, since the Fourth Circuit’s decision, other circuit courts of appeal and district courts have failed to establish a clear threshold of how long a condition must last before it may qualify as a disability under the ADA.

The lack of certainty leaves open the possibility that as coronavirus long-haulers continue to experience the effects of COVID-19, employers may face an increasing likelihood that these conditions will meet the ADA’s definition of disability. For employees who request an accommodation, this means engaging in an interactive process to determine whether the employer can provide one without incurring an undue burden. Moreover, an employee’s health condition may not form the basis for an adverse employment action, such as discipline or termination. Of course, employers may want to review whether an employee’s case of COVID-19 meets the definition of a “serious health condition” and qualifies for unpaid leave under the Family and Medical Leave Act or other state-specific leave laws. Employers may also want to carefully address these issues when they are presented by affected employees rather than dismissing them through analogy to the typical influenza.