By: Kelly Dempsey, Esq.

With all the NSA, NQTL, and OTC testing rules and talk, it’s possible you may have missed that the EEOC has published a bunch of guidance and FAQs discussing COVID-19 as a disability under the ADA. You may recall from prior blogs and articles I’ve written that I have a friend that has long-COVID, making this a topic I’m very passionate about. She is a long hauler who suffers from chronic fatigue, “brain fog,” dizziness on standing, and migraines just to name a few daily symptoms (she also still can’t smell or taste normally). Like any medical condition or potential disability, diagnosing long-COVID requires an individualized assessment. This also means that employers have a duty to accommodate when long-COVID is a disability.

In December, the EEOC added an additional section to the existing COVID-19 Technical Guidance to help clarify when COVID-19 may be considered a disability under the ADA and the Rehabilitation Act. I’ll be honest, the guidance provided isn’t earth shattering and shouldn’t be a surprise to employers, but it is something that employers should take a bit of time to review and understand, especially as it relates to employer leave policies and eligibility for health plan benefits (you knew that was coming at some point, right?). One of the underlying notions is that employers should avoid making medical determinations. In other words, the employer should not attempt to diagnose when discussing reasonable accommodations. When in doubt, ask for more documentation from the treating physician(s). This seems basic, but this is an area that can be a slippery slope for employers if they start making decisions that don’t align with the medical documentation. If the physician indicates the person can come back to work as before, believe them and document accordingly. And for those not ready to go back to work yet, there may be more in store…

There are rumors in the political world that private employers may soon be required to offer additional federal paid leave related to COVID-19.  You may recall the Families First Coronavirus Response Act from April of 2020 that included paid leave requirements. It’s possible we may seem something similar soon; however, the added fun now is that that there may already be state or local leave laws in place. The existence of state and local laws varies significantly across the United State. In general, the concept of paid leave is growing across the country and not just in the context of COVID. Employers need to do their due diligence from an employment as well as health plan perspective. My crystal ball isn’t telling me much at this point, but it’s something to keep on your radar as one more thing that might create a need to amend SPD/PDs at some point during 2022.

The list of things self-funded plans and employers need to be mindful of in 2022 is a very long list – if you need help, you know how to reach Phia!

And if you really want to read all the FAQs, you can find them here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws