On July 26, 2021, the Departments of Health and Human Services (HHS) and Justice (DOJ) (collectively, Departments) issued guidance taking the view that cases of COVID-19 involving symptoms that last for weeks or months (referred to as long COVID or long-hauler COVID) can be a disability under Section 1557 of the Affordable Care Act (ACA), the Americans with Disabilities Act of 1990 (ADA) (Titles II and III), and Section 504 of the Rehabilitation Act of 1973. The White House issued a fact sheet related to the guidance.

(Regarding COVID-19 compliance, see Practice Note, COVID-19 Compliance for Health and Welfare Plans.)

ACA Section 1557 prohibits disability discrimination in certain health programs and activities (42 U.S.C. § 18116; see Practice Note, Nondiscrimination in Health Programs and Activities Under the ACA (Section 1557)). In 2020, the Trump administration's HHS issued final regulations under Section 1557 that reduced regulatory requirements under the Section 1557 regulations that were implemented under the Obama administration. In the disability context, however, the 2020 final regulations retained various provisions concerning reasonable modifications and accessibility issues for individuals with a disability (see Practice Note, June 2020 Final Regulations Under ACA Section 1557: Nondiscrimination in Health Programs and Activities).

In addition to prohibiting disability discrimination in employment, the ADA prohibits disability discrimination in the areas of public transportation (Title II) and public accommodation (Title III) (see Practice Note, Title III of the Americans with Disabilities Act (ADA): Website Compliance: The ADA). Additionally, Section 504 of the Rehabilitation Act (Section 504) prohibits disability discrimination in programs or activities that receive federal funds or are conducted by a federal agency (29 U.S.C. § 794; see Practice Note, Discrimination Under the Rehab Act: Basics: Section 504).

Under the above laws, a disability includes an individual:

According to the Departments, symptoms of long COVID may include:

The guidance, which addresses the "actual disability" component of the disability definition, provides that long COVID can be a disability under Section 1557, the ADA, and Section 504 in certain cases. In some situations, long COVID may damage lungs, heart, kidneys, or respiratory, nervous, circulatory, or cardiovascular systems. The Centers for Disease Control and Prevention (CDC) continues to monitor cases of long COVID, along with cases of breakthrough COVID.

In the guidance, the Departments conclude that long COVID can be a disability under Section 1557, the ADA, and Section 504 because it:

However, long COVID is not a categorical disability under the guidance. Whether a case of long COVID meets the conditions to be a disability must be assessed on a case-by-case basis.

As many who have survived COVID-19 will attest, the "long-haul" symptoms of this disease (even mild cases) can last long after the symptoms associated with the initial infection of SARS-CoV-2 have subsided. We'll likely see litigation in the months and years to come addressing whether long COVID situations are disabilities under the laws addressed in this guidance. Time will tell whether the courts defer to the Departments' administrative position on long COVID in those cases.