2023 Trends: ADA and Long COVID

Are We There Yet?

It’s tempting to think we are done with the COVID-19 conversation, but those who manage ongoing accommodation and leave requests and process claims know that is not our reality. There hasn’t been a tsunami of long COVID claims, as some expected, which makes it easier to adopt an out-of-sight, out-of-mind philosophy. However, that would be unwise— in part, because of potential lag times in reporting.

Long COVID can be considered a disability under the Americans with Disabilities Act (ADA).¹ Many experts predict it will be the next national health disaster,² and wise professionals are making plans to ensure compliance. So, what does that look like?

Job one is to ensure absence and disability managers have updated job descriptions that include essential functions since these morph over time as we saw during the pandemic. Whether you include this exercise as part of the interactive process or in annual employee reviews, it’s essential to update job descriptions regularly and document the perspectives of those doing the work.

Customize

There is no one-size-fits-all approach to accommodations, which is why it’s so important to have individualized assessments and establish a consistent process to avoid unintentional discrimination. Everyone must be treated fairly, which includes following the same process and offering accommodations consistently.

And it’s risky to continue with pre-pandemic approaches. We hear this refrain from legal experts, who cite costly court cases (awards for employees as well as legal fees) when employers fail to respond to change and adjust their policies. As absence and disability professionals, you should ensure that updated policies, processes, and practices reflect the changes we have seen to our work environments. A key piece of this is training supervisors regularly to make sure they not only understand policies and procedures, but they are also confident in their ability to implement them. And don’t forget the important interactive process, which might require you to think outside the business-as-usual perspective.

Realities

This approach is especially true when we work with employees affected by long COVID. In addition to ensuring reasonable accommodations for millions of employees with the condition, we need to address industry vulnerabilities that were highlighted during the pandemic.

The Long COVID: Assessing and Managing Workforce Impact white paper,³ includes policy guidance, recommendations for stay-at-work and return-to-work accommodations, a decision-making process map, and best practices. Developed by an industry think tank assembled by DMEC with support from Sedgwick, the resource cites bottom-line costs, productivity concerns, and disability system limitations.

Along with addressing the financial costs of long COVID-related claims and a worrisome loss of intellectual capital as older employees leave the workforce, the white paper highlights gaps in benefits and care,³ and sets the stage for future discussion.

And judging from the 2022 DMEC Long COVID Pulse Survey Results,⁴ that guidance is needed.  

For example, what happens when a virus that is difficult to diagnose sickens millions of workers, and the traditional documentation required for coverage is not available? What is the employer’s role when employees with long COVID bump into short-term disability ceilings, and when employees are sick but not eligible for long-term disability? When it comes to care, what role should employers play to ensure employees have options to get what they need for whole-person health (body and mind)? And how do we deal with the 24-month limitation for mental illness-related disability?

This is not a new issue, but it is increasingly problematic for employees with brain fog symptoms associated with long COVID. While many thought this would have been addressed by the mental health parity legislation, that has not happened.⁵

These complicated issues require insurance industry collaboration to achieve meaningful change when it comes to coverage. And there are time-sensitive elements to these questions, especially the mental health limitation, due to challenges with long COVID now and in the future. For example, the way providers code diagnoses for “mental nervous” or long COVID has a material effect on your employees’ insurance coverage, which affects access to care.

Solutions

Amid a sea of unanswered questions, an emerging theme is the need for more accommodation-friendly workplaces that keep employees at work and provide incentives for them to return as soon as possible.

Your responsibility to assess and update job descriptions, as noted earlier, will help here as it can shed light on the cognitive requirements for different roles, which is especially pertinent for (but not limited to) employees with long COVID.

In addition to updating job descriptions and assessing accommodations, employers should be tracking cases of COVID and long COVID, whether that means monitoring information from insurance companies or using an in-house method.

Data from the Centers for Disease Control and Prevention show that one in 13 adults have long COVID symptoms, and 80% of adults with the disease have trouble with daily activities.³ These aren’t just numbers; they represent the people who keep your company in business. And since we continue to hear about undocumented cases of long COVID, creating open lines of communication and encouraging employees to report illness will help ensure that they have what they need to do their work and that your workplace is a safe — and productive — environment.

Accommodations Matter

Despite topic fatigue when it comes to all things COVID, practical issues must be addressed to accommodate and manage leaves. The pandemic highlighted holes in our systems — gaps between theory and practice. As new variants emerge, and millions of Americans file long COVID claims, we must respond effectively and ensure history doesn’t repeat itself.

To do that we need to shore up accommodation and return-to-work processes, and think more creatively about accommodations overall and the message our approaches send. The ways in which employers ensure employees diagnosed with COVID and long COVID get the support they need can help or hinder employee experience. And it represents an opportunity for employers to demonstrate their culture of caring.

While many want to believe the pandemic is behind us, we are not quite there. However, our work to assess processes and make necessary adjustments could help us get there.