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Biden administration declares ‘long Covid’ a DISABILITY eligible for accommodation under civil rights law

Under a guidance announced Monday by the departments of Justice (DOJ) and Health and Human Services (HHS), ‘long Covid’ is defined as a series of symptoms, experienced by people who have been infected with the novel coronavirus, that “can last weeks or months” afterward and “worsen with physical or mental activity.”

The announcement was made on the 31st anniversary of the ADA being signed into law in 1990, which Assistant Attorney General Kristen Clarke – who oversees the DOJ’s Civil Rights Division – called “one of our most transformative civil rights laws.”

“As many of our neighbors find themselves with long-lasting effects from COVID-19, we are committed to making sure that people understand their rights under federal nondiscrimination laws,” Clarke said. “The Department of Justice will vigorously enforce the ADA and other federal civil rights laws to ensure that as the nation responds to, and recovers from, [Covid]-19, and that those with disabilities are full and equal partners in that recovery.” 

Some individuals “experience debilitating long-term impairments that substantially limit major life activities,” said Acting Director Robinsue Frohboese of HHS’s Office of Civil Rights. “Today’s guidance makes clear that these individuals are entitled to equal opportunities and full participation in all aspects of life. “

Even though ‘long Covid’ is still being studied by scientists, the DOJ and HHS have declared that it qualifies as a disability under the ADA, as well as Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Affordable Care Act, commonly known as Obamacare.

The “civil rights protections and responsibilities of these federal laws apply even during emergencies” and “cannot be waived,” the DOJ and HHS point out in their joint statement. 

The pandemic has been invoked by governors and federal officials across the US to curtail a long list of liberties since March 2020, resulting in many court battles over lockdowns, mask and vaccine mandates, and other restrictions.

Americans who claim that their symptoms “substantially limit” one or more major life activities would be eligible for “reasonable modifications” under the law. For example, students who have difficulty concentrating could get additional time on tests; people waiting in lines could be allowed to sit down without losing their place; and people who get dizzy standing would be allowed to have a stabilizing service animal. 

However, an “individualized assessment” will be necessary to determine if a person’s symptoms qualify for disability status, the agencies said.

The guidance relies on the definition of ‘long Covid’ offered by the Centers for Disease Control and Prevention (CDC), which lists “common symptoms” as fatigue, difficulty concentrating (“brain fog”), shortness of breath, headaches, dizziness, chest pains, cough, joint or muscle pain, depression or anxiety, and loss of taste or smell, among others.

Even if the impairment caused by these symptoms comes and goes, it is still considered a disability “if it would substantially limit a major life activity when the impairment is active,” the guidance says. It only applies to ‘long Covid,’ and does not address whether Covid-19 itself meets the legal definition of disability.

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