Welcome

Covid Long-Haulers Get Disability Civil Rights Protections (3)

July 26, 2021, 5:13 PM; Updated: July 26, 2021, 10:46 PM

Covid-19 survivors with lingering symptoms, who call themselves long haulers, can be protected under the Americans with Disabilities Act, according to guidance put out Monday by the Justice Department and the Department of Health and Human Services.

People with long Covid can have symptoms such as fatigue, difficulty breathing, muscle and joint pain, headaches, depression or anxiety, and difficulty thinking or concentrating, which has become known as “brain fog,” according to the Centers for Disease Control and Prevention.

Long Covid is classified as a disability “if the person’s condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits’ one or more major life activities,” the guidance said.

Some studies indicate about 10% of Covid-19 patients may become long haulers. Disability rights activists say the Covid-19 pandemic could lead to the largest rise in the number of disabled people in the U.S. in decades.

The announcement was made as President Joe Biden celebrated the 31st anniversary of the landmark disability rights law with lawmakers.

“We’re bringing agencies together to make sure Americans with long Covid who have a disability have access to the rights and resources that are due under the disability law, which includes accommodations and services in the workplace and school and our health-care system so they can live their lives in dignity and get the support they need as they continue to navigate these challenges,” Biden said at the White House.

Some reasonable accommodations for people whose long Covid qualifies as a disability include allowing a person with dizziness to be accompanied by their service animal, providing additional time on a test for a student with difficulty concentrating, and pumping gas for a customer with joint or muscle pain, the guidance said.

Disability rights advocates praised the move by the Biden administration.

“We are glad that the White House recognizes that many COVID long haulers will now be part of the disability community, and therefore are protected under the Americans with Disabilities Act,” Nicole Jorwic, senior director of public policy at the Arc, a nonprofit that advocates for people with intellectual and developmental disabilities, said in an email.

“Guidance from the federal government on COVID as a disability is something that advocates have been asking for,” Jennifer Mathis, director of policy and legal advocacy at the Bazelon Center for Mental Health Law, said in an email.

“COVID has presented important disability rights concerns, including the need for reasonable accommodations and modifications in a variety of contexts, so we were pleased to see the government issue guidance explaining how long COVID may be a disability protected by the Americans with Disabilities Act,” Mathis said.

The CDC released interim guidelines in June to help doctors diagnose and treat long Covid. However, “post-COVID conditions are not yet well understood,” the agency said at that time.

The CDC said it is “challenging” to define long Covid because it is associated “with a spectrum of physical, social, and psychological consequences, as well as functional limitations that can present substantial challenges to patient wellness and quality of life.”

These patients have struggled to get insurance companies to cover their medical treatment and find mental health support after the challenges associated with the disease.

Attorneys expect to see litigation against health insurance companies for failing to pay disability benefits to people with long Covid.

VIDEO: The scale and newness of the Covid-19 pandemic presents new questions about what treatments insurers will cover and who, ultimately, will pay for what could be years of medical care.

Workplace Accommodations

The ADA requires employers with 15 or more employees to make reasonable accommodations for people with a disability. However, what employers and employees define as reasonable can differ.

A blog post published by the Department of Labor earlier this month said that workers experiencing long Covid may be entitled to workplace accommodations under the ADA.

However, the U.S. Equal Employment Opportunity Commission enforces anti-bias laws, including the ADA, in private workplaces, and the agency hasn’t specifically provided guidance on ADA considerations for workers experiencing long Covid. An agency spokesman said the EEOC doesn’t have information on the timing of new guidance on Covid-19, but the agency is monitoring relevant developments.

“We will continue to update the public when we have information that would assist employees and employers with their COVID-related workplace questions,” the spokesman said in an email.

To qualify as having a disability under the ADA, a worker must have, must be regarded as having, or have a record of a condition that substantially limits one or more major life activities, such as caring for oneself, or communicating, or affecting the function of a major bodily function.

The ADA allows workers to sue an employer to allege discrimination or a failure to accommodate a disability.

The Education Department is releasing guidance on how schools may need to modify services for students with long Covid.

—With assistance from Paige Smith, Lydia Wheeler, Andrew Kreighbaum, and Jennifer Epstein (Bloomberg News)

(Adds links to Education Department info in last paragraph.)

To contact the reporter on this story: Shira Stein in Washington at sstein@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Brent Bierman at bbierman@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.