New Masking Guidelines and ‘Long COVID’ Now a Covered Disability Under the ADA

August 7, 2021

Last week, the COVID-19 Delta variant drove a drastic rise of cases in areas with low vaccination rates across the country. Recent studies show that this Delta variant is at least 80% more transmissible than the prior COVID strains and spreads as fast as the chickenpox virus. The southern states, like Louisiana and Mississippi, are seeing an especially large wave of COVID-19 cases, with some governors again implementing state-wide mask mandates for everyone. And, other states, like New York, plan to require proof of vaccination in some places of public accommodation, like restaurants and gyms.

In Ohio, Delta variant cases are surging and hospitalization rates are ticking upward, yet only a little over 46% of Ohioans have been fully vaccinated, as reported by the Ohio Department of Health. Recent studies have also shown that despite this latest, more dangerous wave of COVID-19, vaccination rates may have already tapered off.

Nevertheless, in response to the recent surges of cases sweeping the nation, certain administrative agencies have taken to the drawing board to issue new, improved guidance and other protections for vaccinated and unvaccinated Americans.

CDC Updates Mask Guidelines

On Tuesday, July 27, 2021, the CDC issued new guidance recommending that even fully vaccinated individuals wear masks indoors in public in areas of “substantial or high transmission,” which according to this map means a great majority of the United States, including parts of Ohio. No part of Ohio is characterized as a “low” transmission area any longer. The CDC also recommends that fully vaccinated people who have come in close contact with someone suspected or confirmed to have COVID-19 be tested three to five days after exposure and wear a mask in public indoor settings for 14 days or until they receive a negative test result. Notably, the CDC states that Delta variant infections only happen in a small proportion of fully vaccinated people, but according to preliminary data, even those who are fully vaccinated can carry and/or spread the virus to others, making it more of a cause for concern.

CDC Urges Universal Mask Wearing in Schools

As students return to the school setting, the CDC is also urging universal mask wearing in schools for students (over the age of 2), teachers, staff and any visitors to schools. While unwilling to amend its recommendation that students should return to in-person school this fall, the CDC advises that everyone take the appropriate precautions while in the classroom.

WHO Recommends Masks For All, Regardless of Vaccination Status

As of Aug. 5, 2021, the World Health Organization (WHO) has also now recommended that fully vaccinated individuals wear masks and practice other safety precautions to protect against the COVID-19 Delta variant.

HHS Adds “Long COVID” as a Protected Disability Under the ADA

On Monday, July 26, 2021, the U.S. Department of Health and Human Services (HHS), together with the U.S. Department of Justice (DOJ), published guidance to add “Long COVID” as a disability under Titles II (state and local government) and III (public accommodations) of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act. The guidance does not include discussion regarding Title I of the ADA, or the provisions related to discrimination in the employment context. According to the CDC, those who have been diagnosed with “long COVID” can have a range of symptoms, including, but not limited to, tiredness or fatigue, difficulty thinking or concentrating (i.e., brain fog), shortness of breath, headache, dizziness, heart palpitations, chest pains, cough, joint pain, depression, anxiety, fever and loss of taste and smell. Some people also experience damage to their organs, which can lead to additional symptoms. Generally, those with “Long COVID” – the “long haulers” as they are oftentimes referred – may have symptoms for weeks or even months after they are initially infected with COVID-19 that can worsen over time or with physical or mental activity. HHS and DOJ state that “Long COVID” may substantially limit a major life activity to be considered a “disability.”

Protections Against Discrimination for Those With “Long COVID”

Adding “Long COVID” as a disability under Titles II and III under the ADA means that people whose symptoms qualify as a disability are entitled to protections against discrimination and access to reasonable accommodations or modifications. Notably, the guidance states that “Long COVID” is not always considered a disability, but each case must be considered upon an individualized assessment to determine whether the symptoms of “Long COVID” substantially limit a major life activity.

Businesses Should Review and Update Mask and Accommodations Policies

With these new changes, companies should again review and evaluate their policies and masking requirements. Businesses should also review their accommodations policies for those with disabilities entering onto or doing business on their premises. Further, although the scope of the new addition of “Long COVID” to the ADA does not, at this point, extend to the employment context under Title I of the ADA, employers should consider that this may be the natural next step for HHS and DOJ. As such, employers should also begin to consider if accommodations for employees with “Long COVID” are reasonable and possible for their workplace and how an accommodation for “Long COVID” may interact with other employment laws, such as the FMLA.

As updates are rapidly evolving, businesses should continue to closely monitor guidance from the CDC, OSHA, HHS and other administrative agencies to determine their best next steps.

For more information, please contact Rob Gilmore at rsg@kjk.com or 216.736.7240 or Kirsten Mooney at kbm@kjk.com or 216.736.7239, or reach out to any of our Labor & Employment professionals.