Long COVID, also known as Post-Acute Sequelae of SARS-CoV-2 infection (PASC), refers to a condition where people who have recovered from COVID-19 continue to experience persistent symptoms that can last for weeks or months after their initial illness. For people who have long COVID, returning to normalcy is not a typical timeframe.
Working can be challenging for those suffering from long COVID, as it can affect their ability to perform their job responsibilities. Long COVID symptoms can vary from person to person, but common signs include fatigue, shortness of breath, and muscle weakness. In addition to the physical symptoms, long COVID can also affect a person's mental health, causing anxiety, depression, and other mental health challenges. As a result, these symptoms can impact a person's ability to concentrate, remember, or perform physical tasks, affecting productivity and work performance. Interacting with others, making decisions, or handling stressful situations can be harder than usual for long COVID sufferers.
It is essential for employers to be aware of long COVID and to work with employees who are experiencing symptoms to ensure they receive appropriate support and accommodations. Reasonable accommodations may include adjusting work hours or responsibilities, providing additional support, or allowing employees to work from home. Employers can also educate their workforce about long COVID to help reduce stigma and promote understanding and empathy for those experiencing it.
Aside from positive employee relations and supporting our staff, we also need awareness of what is required by law. According to the Americans with Disabilities Act (ADA), for employers with 15 or more employees, an employee who suffers from long COVID for more than 2 weeks might be covered under ADA if the employee:
Has a physical or mental impairment that substantially limits one or more major life activities;
Has a record of such an impairment; or
Is regarded as having such an impairment.
Once eligible under the ADA, the employer could provide all or some of the following necessary accommodations:
Temporarily reduced workloads or modified duties for a time
Flexible work schedules to accommodate flare-ups of the symptoms
An interactive process to ensure the organization considers the employee's needs
Employers with 50 or more must comply with the Family Medical Leave Act (FMLA). Employees who experience a serious health condition, in this case, those who have suffered from long COVID for three or more days and have been to their doctors twice will likely qualify for up to 12-weeks of leave time. This time is unpaid, but can be coordinated with Sick, Vacation, and for local sick time requirements.
The type of leave can include full-time FMLA, i.e., out of the office for full days in a row.
Or, the employee may request intermittent leave, allowing employees to use FMLA time as needed. The "as needed" typically applies to the extent that the employer's payroll system can capture increments of time, resulting in partial days, half days, or even early/late arrivals.
FMLA can disrupt the normal flow of work, but we must understand that long COVID can fall under the category of a serious illness and therefore needs appropriate treatment under the law(s).
In some states and cities, Sick Leave laws or extensions of FMLA require consideration when we face employees suffering from long COVID. Some of the FMLA requirements are more relaxed in Sick Leave Laws or local versions of Family Leave. This results in many smaller employers becoming covered under local regulations and their employees are eligible for leave that they otherwise would not under the federal laws.
For organizations based in New York City, see below for an overview of NYC Leave and Sick benefits:
Employees might quality for Disability benefits, these are cash-only benefits. Employees cannot collect disability benefits and Paid Family Leave benefits at the same time. The total combined disability leaves and Paid Family Leave in any 52-week period may not exceed 26 weeks.
Employers should also review any other Short-Term Disability Plans their organization offers its employees. Introduction to the Disability Benefits Law (ny.gov)
New York Family and Medical Leave (PFL)
PFL covers the following as it relates to long COVID:
To care for a family member with a serious health condition, illness, injury, impairment, or physical or mental condition. PFL covers inpatient care in a hospital, hospice, or residential health care facility, continuing treatment, or continuing supervision by a health care provider. Continuing management by a health care provider includes a period of permanent or long-term incapacity due to a condition for which treatment may not be effective. The employee need not be receiving active treatment by a health care provider.
Unlike FMLA, PFL covers employers of all sizes covered under the state's Worker's Compensation Law.
Employees are covered if they meet the following:
Employees with a regular schedule of 20 or more hours per week are eligible after 26 weeks of employment.
Employees with a regular schedule of fewer than 20 hours per week are eligible after 175 days worked.
New York Sick Leave
Employees accrue one hour of paid sick leave for every 30 hours worked. Exempt employees are presumed to work 40 hours per week unless they are regularly scheduled to work fewer hours, in which case accrual is based on their usual schedule.
Accrual begins immediately upon employment. Employers must provide sick leave per calendar year as follows:
Employers with four or fewer employees and a net income in the previous tax year of:
Less than $1 million: 40 hours unpaid.
More than $1 million: 40 hours paid.
Employers with 5–99 employees (regardless of income): 40 hours paid.
Employers with 100 or more employees: 56 hours paid.
The challenge for employers is that many of these requirements can overlap or be concurrent. Unlike most Human Resources topics requiring consistency and equal treatment, since illnesses affect individuals differently, we need to treat employees according to their needs, eligibility under one or more of these programs, and our ability to accommodate them.
Kiwi Partners helps our clients navigate the minefield of complying with so many of these requirements simultaneously for each employee impacted by illness like long COVID. The good news is there are ways to coordinate leaves, proactively assist employees, and handle these cases appropriately.