Long-term COVID May Rise to the Level of Disability under the ADA: Employers' Duty to Accommodate
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651.290.6500
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Lake Elmo, Minnesota 55042
info@jlolaw.com
JLO Newsletter Spring 2022
Long-term COVID May Rise to the Level of Disability under the ADA:
Employers’ Duty to Accommodate
By: Maya Ortiz
The U.S. Department of Health & dizziness, heart palpitations, chest According to Cannice v. Norwest
Human Services (DHHS) and the pain, joint and muscle pain, and loss Bank Iowa N.A., a disabled
Civil Rights Division of the of taste or smell. Also, these employee must initiate the
Department of Justice (DOJ) have symptoms may lead to other accommodation-seeking process by
recently published guidance on complications such as damage to making their employer aware of the
“Long COVID” as a disability organs including the heart, lungs, need for an accommodation. 189
under the Rehabilitation Act of kidneys, skin, and brain. F.3d 723, 726 (8th Cir. 1999).
1973 § 504 and the American Additionally, the employee must
Disabilities Act § 15571. Generally, Long COVID can be a disability provide relevant details of their
individuals diagnosed with COVID- under the ADA if it substantially disability and, if not obvious, the
19 get better within weeks, whereas limits one or more major life reason that their disability requires
some people continue to experience activities. According to 42 U.S.C.A. an accommodation. Once the
symptoms that can last months § 12102 (1), an individual has a employer is made aware of the
after their initial infection date. The disability under the ADA if they legitimate need for an
Centers for Disease Control and have: “(a) a physical or mental accommodation, the employer must
Prevention (CDC) found more than impairment that substantially limits “make a reasonable effort to
79 million Americans have been one or more major life activities of determine the appropriate
diagnosed with COVID-19, such individual; (b) a record of such accommodation.” Cannice, 189 F.3d
however, studies have found that an impairment; or (c) being at 727. This means that the
globally roughly 43% of people regarded as having such an “employer should first analyze the
with confirmed COVID-19 have impairment… .” An individualized relevant job and the specific
experienced COVID-19 symptoms assessment must still be conducted limitations imposed by the disability
for at least 28 days after infection.2 on persons affected by long and then, in consultation with the
Post-COVID symptoms which last COVID in order to qualify as a individual, identify potential
four or more weeks have been disabled person under the ADA. effective accommodations.” Id.
classified as a condition called “long Ultimately, employers are required
COVID.”3 People whose long COVID to “make a good-faith effort to seek
qualifies as a disability are entitled accommodations.” Fjellestad v. Pizza
According to the CDC, long to the same protections from Hut of Am., Inc., 188 F.3d 944, 954
COVID can include a range of new discrimination as any other person (8th Cir. 1999).
or ongoing symptoms that can last with a disability under the ADA.
weeks, or months after someone is This means that employers have a The DHHS and DOJ guidance
infected with the virus that causes duty to accommodate these stated some reasonable
COVID-19 and symptoms can individuals when an accommodations for people whose
worsen with physical and mental accommodation is requested. long COVID qualifies as a disability
activity. Symptoms of long COVID However, caselaw has established a include allowing a person with
mimic those of COVID-19 such as shared responsibility between dizziness to be accompanied by
fatigue, difficulty thinking or employers and employees to resolve their service animal, providing
concentrating, shortness of breath, accommodation requests. additional time on a test for a
Page 1
student with difficulty reasonable is a question of fact to and Systematic Review.” MedRxiv, Cold
concentrating, and pumping gas for be decided by a jury. Fjellestad, 188 Spring Harbor Laboratory Press, 1 Jan.
2 0 2 1 , h t t p s : / / w w w . m e d r xi v . o r g/
a customer with joint or muscle F.3d at 957. content/10.1101/2021.11.15.21266377v1
pain. Here, there is no precise test
1Office for Civil Rights. “Guidance on
for what constitutes a reasonable 3“Post-Covid Conditions.” Centers for
‘Long Covid’ as a Disability under the Ada,
accommodation, but an Section 504, and Section 1557.” HHS.gov, Disease Control and Prevention, Centers
accommodation is unreasonable if it 11 Aug. 2021, https://www.hhs.gov/civil- for Disease Control and Prevention,
requires the employer to eliminate rights/for-providers/civil-rights-covid19/ https://www.cdc.gov/coronavirus/2019-
ncov/long-term-effects/index.html?
an essential function of the job. guidance-long-covid-disability/index.html
CDC_AA_refVal=https%3A%2F%
Dropinski v. Douglas County, Neb., 298 2Fwww.cdc.gov%2Fcoronavirus%2F2019-
2Chen,Chen, et al. “Global Prevalence of
F.3d 704, 709 (8th Cir. 2002). ncov%2Flong-term-effects.html
Whether an accommodation is Post-Acute Sequelae of COVID-19
(PASC) or Long COVID: A Meta-Analysis
Congratulations
Congratulations to Patrick S. Collins and Joseph E. Joseph E. Flynn and Vicki A. Hruby obtained an
Flynn who successfully obtained dismissal of all order dismissing a § 1983 suit arising out of the
claims for their clients in Hunter v. City of Crosby, et alleged failure to disclose Brady material to a
al. EaV^ci^ö ?VbZh =jciZg VaaZ\ZY i]^gin-one claims Xg^b^cVaYZ[ZcYVci#EaV^ci^ö8aVgZcXZAdodnVVaaZ\ZY
of defamation against the former Crosby Chief of i]Vi i]Z8Vgaidc8djcin6iidgcZnÈh DõXZ[V^aZY id
Police Kim Coughlin, former Crosby Lieutenant disclose Brady material on the arresting police
Kevin Randolph and the City of Crosby. Pursuant to dõXZgeg^dgidZciZg^c\^cidVeaZVV\gZZbZcil^i]
the Defendants’ motion to dismiss, the district court Lozoya. The U.S. District Court found that the U.S.
dismissed all thirty-dcZ d[ EaV^ci^öÈh XaV^bh# I]Z Constitution does not require the government to
EaV^ci^ö VeeZVaZY VcY i]Z B^ccZhdiV 8djgi d[ disclose material impeachment evidence prior to
6eeZVah]ZaYi]Vidcanildd[EaV^ci^öÈhXaV^bhXdjaY entering a plea agreement with a criminal defendant.
hjgk^kZ Y^hb^hhVa# EaV^ci^öÈh ild gZbV^c^c\ XaV^bh 6hVgZhjai!EaV^ci^öÈh&.-(XaV^bh[V^aZYVhVbViiZg
were sent back to the district court. At the end of of law. Lozoya v. City of Cloquet, et. al, 21-cv-0990
Y^hXdkZgn!EaV^ci^öZaZXiZYidkdajciVg^anY^hb^hh]^h (ECT/LIB), 2022 WL 37460 (D. Minn. Jan. 4, 2022).
two remaining claims instead of face motions for
summary judgment and sanctions. At the end of this
long battle, Patrick and Joe successfully obtained
dismissal of all claims with prejudice.
Page 2
Data Practices Act Compliance: Data with
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By: Trevor S. Johnson
The Minnesota Government Data transparency might equally violate In its analysis, the Commissioner
Practices Act (“MGDPA”) attempts the MGDPA. Additionally, the relied on the Minnesota Supreme
to balance multiple competing classification of any particular piece Court’s 2016 decision in KSTP TV
interests: that of the public in of data is not inherent to the data v. Metropolitan Council, 884 NW 2d
government transparency, that of itself, but rather depends on the 342. In KSTP, the TV station
individuals in their privacy, and that timing of the request, the way the sought video recordings from two
of the government itself in being data is stored, the identity of the different Metro Transit busses that
able to function effectively. requester, and even the purposes included depictions of the bus
Reflecting the importance of each for which the data is kept. drivers’ conduct as well as that of
of these goals (with special Accordingly, data can shift from passengers, pedestrians and other
emphasis on the first two), the one classification to another over traffic. One of the busses had
MGDPA imposes significant time or even fall into multiple driven off of the road and crashed,
responsibilities on the government classifications simultaneously. and the driver of the other had
entities to which it applies, which Successful handling of MGDPA gotten into an altercation with a
span the spectrum from statewide responsibilities requires crafting, cyclist. In each case, the Council
agencies to local park boards to and then adhering to, a robust, copied the incident video onto
private parties contracted to clearly defined data retention policy DVDs and used it to evaluate the
perform certain governmental and conducting a careful, fact-based conduct of the drivers. Like the
functions. The Act regulates the analysis of each data request. school district, the Council believed
ways in which government entities the video was private personnel
create, collect, retain, manage, store, A recent advisory opinion (No. 21- data and declined to release it.
secure and provide access to data 002; January 13, 2021) from the
and, further, provides for civil Commissioner of Administration The supreme court’s analysis of this
actions, administrative sanctions, illustrates how a seemingly simple data classification question hinged
and even criminal penalties against request related to a routine on the statutory phrase “maintained
both government entities and proceeding can end up being more because...” Was the data maintained
individual personnel in case of difficult than expected, and also strictly for the purpose of evaluating
violations (see, e.g., Minn. Stat. §§ illustrates the importance of a data employee performance? In that
13.08, 13.09). Notably, the Act retention policy. In this example, case, it could be private personnel
explicitly waives the State’s someone made a MGDPA request data. Or were there also non-
immunity to actions brought under for a recording of the public personnel-related reasons, such as
the MGDPA (Minn. Stat. § 13.08, comment portion of the ISD 197 public safety, for maintaining the
subd. 1). school board meeting. A record of a video? In that case it would be
school board meeting is classified as public. Complicating the matter, the
The MGDPA has competing goals public data (Minn. Stat. § 13D.05, court determined that the Council
of ensuring extensive public access subd. 1(c)). However, the school may have had different reasons for
to certain government data, while district declined to release the maintaining the video at different
requiring robust protection of other recording, having decided it was points in time. Each bus contained
government data, which can make private personnel data because the a hard drive that recorded video on
compliance difficult. When public comment section included a continuous loop, storing 330
analyzing a request for data and “allegations against district hours of video before recording
deciding what must be redacted, it employees.” Personnel data is over the oldest data. If the Council
is generally not possible to “play it information about an individual wanted to preserve the video
safe” in either direction, as “maintained because the individual beyond that time period for any
withholding data in the name of is or was an employee…of a reason, such as to evaluate an
individual privacy and over- government entity” (Minn. Stat. § employee’s performance, the
disclosing in the name of 13.43, subd. 1). Council needed to copy the relevant
Page 3video to a DVD. The court outcome” (Harlow v. State Dept. of district, highlight an important
observed that the Council may have Human Services, 883 N.W.2d 561, positive takeaway for government
had a “variety of reasons” for 568). Ultimately, the Commissioner entities: your data retention policy
maintaining the last 330 hours of concluded that it did not have matters. Government entities
video from each bus, whereas video enough information to determine should be mindful that the way they
of an incident copied to a DVD whether the District properly internally classify and store data,
may have been maintained responded to the request. and the way their policies describe
“exclusively for a personnel the purposes for which data is
purpose.” Therefore, if the data was In 2016, Justice Lillehaug, joined by maintained, will play a significant
requested within the 330-hour Chief Justice Gildea, dissented in role in determining the ultimate
window when it still existed on the the court’s decision in KSTP-TV, classification of the data by a court.
bus’s hard drive, it was probably noting that the holding allowed Many types of data are not
public, but if the data was requested “public data – images of events that inherently public or private but take
after it had been automatically occurred in public… – [to] morph on those labels because of how they
recorded over on the hard drive, into private data, and thereby are used. A data retention policy is
and now only existed on a DVD become inaccessible to the public.” much more than just a deletion
used for evaluating the driver’s KSTP-TV at 351. Justice Lillehaug schedule. When properly designed,
performance, it was probably went on to speculate that “today’s the data retention policy should
private personnel data. decision will be taken by some identify why data is being
government entities as a free pass to maintained. In the examples cited
Returning to the 2021 advisory conceal that which should be above, the confusion, and litigation
opinion regarding the school board public. If government data…might in the cases of KSTP-TV and
meeting, the Commissioner of show misconduct, and disclosure Harlow, arose because of a lack of
Administration noted an additional might cause embarrassment or clarity within the governmental
issue – the possibility that the worse, then today’s decision organization about why the data
district maintained multiple copies enhances the temptation of the was being maintained. As a result,
of the recording. If the district entity to stash the data in an the data’s classification was called
maintained a copy in an employee’s employee’s personnel file. What is into question. The MGDPA is
personnel file for evaluation or public becomes private—perhaps complex and confusing. A strong
discipline purposes, and maintained forever.” Id., at 354. Notably, the data retention policy can be a
another copy simply as a record of decision in KSTP-TV was 3-2, as powerful tool to ensure that
the open meeting, the personnel Justices Chutich and Hudson took individuals’ private data is
copy would be private and the other no part. protected, government transparency
public. As the supreme court has is promoted, and problematic
observed, “it may seem anomalous Justice Lillehaug focused on a litigation is prevented – allowing the
to have data classified as public for potential negative impact to government entity to function
one purpose and confidential for government transparency. effectively.
another purpose. But we see However, the decision and dissent
nothing in the text of the MGDPA in KSTP-TV, as well as the recent
that prohibits this advisory opinion with the school
Page 4About the Authors
Maya Ortiz Trevor Johnson
Law Clerk Associate
mortiz@jlolaw.com tjohnson@jlolaw.com
651-290-6533 651-290-6534
Maya Ortiz is a Law Clerk at Jardine, Logan & Trevor is an Associate Attorney at Jardine, Logan &
O’Brien, P.L.L.P. She is in her second year of law O’Brien, P.L.L.P. He received his J.D. from the
school at the University of St. Thomas School of University of St. Thomas School of Law,
Law, Minneapolis, Minnesota. Her focus areas are Minneapolis, Minnesota. Trevor’s practice is focused
employment law, health law, and government on Civil Litigation.
liability.
About the Firm
Jardine, Logan & O’Brien, P.L.L.P., is a mid-sized civil litigation law firm that has handled some of the region’s
largest and most difficult disputes with outstanding results for clients. Litigation has always been our primary
focus. With trial attorneys admitted in Minnesota, Wisconsin, North Dakota, South Dakota, and Iowa our firm has
the ability and expertise to manage cases of any size or complexity. We are trial lawyers dedicated to finding
litigation solutions for our clients.
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particular issue, fact, or circumstance. Its contents are for general informational purposes only.
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