In It for the Lengthy Haul: ADA and FMLA Implications for COVID-19 “Lengthy Haul” Signs

With vaccine distribution well advanced, more and more employers are starting or planning how to get their workforce safely back to the office. When implementing reopening policies, employers should consider a worrying trend among those who have recovered from the coronavirus but continue to experience persistent psychological and physical complications. As workers return to work, employers must now assess whether those individuals, colloquially referred to as COVID-19 “long-distance drivers”, may fall under federal, state and local laws on disability and medical leave.

Implications of the Disabled Americans Act

The American With Disabilities Act (ADA) protects an employee with an actual or perceived disability, which the ADA defines as a physical or mental impairment that significantly limits one or more important life activities. The ADA does not have an exhaustive list of impairments classified as disabilities, and each case is determined based on a person’s specific limitations on important life activities. Traditionally, “substantially constrained” language in the law has been interpreted to exclude short-lived conditions from which a person will fully recover.

Currently, long-distance COVID-19 drivers report a variety of different symptoms that may or may not resolve despite treatment by healthcare professionals. For example, many people infected with COVID-19 report persistent memory retention problems, lightheadedness, and difficulty focusing or breathing. These symptoms can severely limit a person’s key life activities with no signs of degradation, increasing the possibility that the remaining effects of COVID-19 will be considered a disability under the ADA. If an employee’s long distance symptoms constitute a disability under the ADA, their employer must make reasonable arrangements in the workplace to enable the employee to do their job despite the long distance symptoms, unless doing so would result in an unreasonable hardship for the employer’s business. For example, a worker who normally does their job in the office may request that they perform their tasks remotely on days when their symptoms are prevalent.

Effects of the Family and Sick Leave Act

Another important consideration for employers who are having difficulty reporting workers due to COVID-19 long distance symptoms is whether the worker is entitled to medical leave under the Family and Sick Leave Act (FMLA). Eligible Employees have the right to withdraw from the FMLA for specific qualifying reasons, including a serious health condition. The FMLA defines a major health condition as a short-term impairment, illness, injury, or physical or mental condition that includes inpatient care or continued treatment by a health care provider. Under certain circumstances, the FMLA vacation can be used temporarily for chronic illnesses that regularly flare up and subside. It is easy to imagine an employee recovering from COVID-19 reporting an incapacity for work some days (but not others) due to COVID-19-related breathing difficulties that worsen and subside without warning. In such circumstances, employers would need to analyze whether an employee is entitled to temporary leave under the FMLA. It is also not ruled out that employers may have to provide a COVID-19 long-distance driver with a combination of FMLA vacation and reasonable workplace accommodation under the ADA, depending on the specific impairment and circumstances affecting the employee.

Effects on State and Local Law

In addition to federal law, employers need to know their state and local laws and regulations for employee vacation and COVID-19. Many states are now offering paid or unpaid leave to employees who have active infections and symptoms of COVID-19. For example, the California Department of Labor has stated that employers in California must grant additional paid sick leave to workers who are experiencing symptoms of COVID-19 and seeking a medical diagnosis. Other states, such as New York, grant paid vacation for quarantine periods related to active COVID-19 infections, but have not yet issued guidelines for vacation related to long-distance symptoms of COVID-19.

The health complications of employees with long-distance symptoms are likely to persist. Given the lack of government guidance on how employers should deal with workers who experience long-distance COVID-19 symptoms, employers must carefully handle these issues as they arise. We will continue to monitor the situation for additional legislative developments and guidelines.