On July 26, 2021, The Americans with Disabilities Act (“ADA”) celebrated its 31st anniversary. The ADA is a civil rights act that prohibits discrimination against people with disabilities in several areas, including public accommodations. Since its implementation, the ADA had and continues to have a profound impact on America.
Governmental entities like the U.S. Department of Justice (“DOJ”) and the U.S. Department of Health and Human Services (“HHS”) have been delegated certain responsibilities for further defining and enforcing the ADA. In this role, the DOJ and HHS, both separately and jointly, issue guidance from time to time to address the various changes occurring in America to assist Americans in understanding how the ADA impacts them. Nothing in recent memory has impacted more Americans than the COVID-19 pandemic, and the DOJ and HHS recognize the virus may cause long-term issues for Americans.
On the 31st anniversary of the ADA, the DOJ and HHS issued Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557 (“Guidance”). Specifically, the DOJ and HHS recognized that most individuals contracting COVID-19 get better in a relatively short period of time, but others may experience symptoms that last weeks or months after infection. In addition, some people who initially had mild symptoms of COVID-19 after infection, may later develop new symptoms after the initial infection has otherwise resolved. The long lasting or later developing symptoms have been termed “long COVID.”
The Guidance indicates the ADA may apply to those individuals facing long COVID if the symptoms of long COVID substantially limit one or more life activities. Specifically, long COVID is a physiological disorder or condition affecting one or more body systems, including neurological, respiratory, cardiovascular, and circulatory systems. Due to COVID-19’s impact on these systems, long COVID may affect any number of life activities including performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working. While broad, the Guidance does indicate long COVID will not always constitute a disability under the ADA and a personalized assessment of an individual’s long COVID is necessary to better understand how it impacts the individual’s life.
Despite the breadth and scope of the ADA with respect to many areas of American life, the ADA does not often impact community associations, because most community associations are not places of public accommodation subject to the ADA. However, the Federal Fair Housing Act (“FHA”) and the Florida Fair Housing Act (“FFHA”) apply to community associations and both laws prohibit housing providers, which includes community associations, from discriminating against people in certain classes, one of which is disability. The various guidance, case law and other decisions and information pertaining to what constitutes a disability under the ADA directly impacts what constitutes a disability under the FHA.
Community associations may face reasonable accommodation and reasonable modification requests from residents related to their long COVID based on the Guidance under the provisions of the FHA and FFHA. As a housing provider subject to the FHA and FFHA, and considering the Guidance, community associations receiving such requests are required to review the requests in the same manner they review reasonable accommodation and reasonable modification requests for things like wheelchair ramps, emotional support animals, and pool lifts.
Based on this, it is important for community associations to stay apprised of the Guidance, case law, and other decisions pertaining to the ADA, and seek legal counsel on how these impact your community association.