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‘My Brain’s Not as Sharp’: Covid Woes Stalk Workers Back on Job

Oct. 6, 2020, 9:27 AM

(Second of two parts)

Covid-19 survivors now have another battle that will outlast the deadly virus: working for a living.

Many with persisting symptoms may still be too sick to work full time or in person. They worry about being exposed again; how they’ll squeeze in doctor appointments when they’ve exhausted their time off; how long their bosses will be understanding; if they’ll be able to perform as they did before, and what happens if they can’t.

“The fatigue is just crazy,” said Donna Talla, 56, of Springfield, Va., who had to return to work as a media-company sales director when her short-term disability leave ran out at the end of August. “My brain’s not as sharp as it used to be, I don’t think.”

Millions of people could be dealing with medical issues including heart, kidney and lung damage long after the pandemic subsides. With no clear legal or regulatory guidance yet on how accommodating employers will have to be, Covid-19 has created a parallel predicament for businesses that carries numerous risks of litigation. It’s unclear whether and how key workplace protections under the Americans with Disabilities Act will apply, leaving it up to employers and employees to sort out what accommodations can or should be made.

The uncertainty builds as preliminary research points to more long-term problems with Covid-19. A new study published Monday found about 4 out of 5 patients hospitalized with the virus suffer neurologic symptoms such as dizziness or confusion. Even in mild cases, those symptoms can last for months.

“Covid effects are going to linger for longer than we hope,” said Marti Cardi, vice president of product compliance at Matrix Absence Management, which administers leave of absence and disability benefits and accommodations for workers of large employers.

See also: Covid `Long Haulers’ Ask Who Pays When Sickness Just Won’t End

Limiting Effects

Talla can’t afford not to work. Her medical care has cost $125,000 already, of which $70,000 to $80,000 is her responsibility. Five months after her March 31 diagnosis, she’s still being treated by a pulmonologist and cardiologist for residual effects of coronavirus.

Talla is working from home due to the ongoing pandemic. She hasn’t asked for a modified schedule but potentially could.

Employers with 15 or more employees may have to make a reasonable accommodation for anyone with a physical or mental impairment under the ADA. The law defines a disability as an impairment that substantially limits a major life activity.

The question is whether Covid-19’s lingering effects will qualify and how employers should accommodate them. The courts haven’t decided that yet, said Jim Swartz, a partner and employment litigator at Seyfarth Shaw LLP in Atlanta.

It will largely depend on how Covid-19 affects each person.

“I would be surprised if there was a blanket determination that anyone with coronavirus is disabled,” said Jason Habinsky, a partner at Haynes and Boone LLP, who chairs the firm’s labor and employment practice group.

Without rulings on the scope of the law specifically related to Covid-19, the Equal Employment Opportunity Commission must rely on existing interpretations of similar circumstances to guide employers on whether long-term and lingering effects of the disease might qualify as a disability, and how employers should respond. In recent guidance on workplace pandemic preparedness, the EEOC said “employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.”

“The EEOC and other agencies are preaching giving employees the benefit of the doubt,” Habinsky said.

Career at Stake

Stefanie Miller, of Plantation, Fla. is back to teaching second grade after spending 21 days on a ventilator in a medically induced coma with Covid-19 between April and May.

Her district, Broward County Public Schools, is planning to start gradually bringing students and teachers back in-person starting Oct. 9. Miller has asked for an accommodation to keep teaching remotely and can work from home while that determination is being made.

“The school board and the governor are using teachers and students as guinea pigs,” she said.

The Broward County Public Schools’ reopening plan says the school district “will strive to provide the choice of a remote assignment to the highest possible number of requesting employees.”

“Eligibility for a work from home/remote extended assignment is based on the function of the job and needs of the worksite,” the plan says. “The employee must be able to perform the essential function of the employee’s job through digital platforms without commuting to an office and/or centralized location.”

Miller is a named plaintiff in a lawsuit led by the Florida Education Association over a state order that, it argues, requires public schools to re-open for in-person instruction or risk loss of funding. A Florida state circuit court judge blocked the order after the union sued in July, but that injunction has since been stayed by a state appeals court. Gov. Ron DeSantis’s office didn’t respond to a request for comment.

Stefanie Miller hopes she’ll be able to keep teaching second grade from home. The 53 year-old from Plantation, Fla. is still recovering from Covid-19’s lasting effects.
Photographer: Scott McIntyre/Bloomberg

What’s Reasonable?

Additional leave, teleworking, or a modified schedule to allow for doctor visits are examples of reasonable accommodations that EEOC says may be required as long as they don’t create an undue hardship for an employer.

But these solutions aren’t always meant to be indefinite.

“If someone says ‘I want to take time off. I can’t tell you how long or when I’ll be back,’ that might not qualify as a reasonable accommodation,” Habinsky said.

Some accommodations can be permanent. It depends on the disability and an individual’s work situation, said Kenneth Shiotani, a senior staff attorney with the National Disability Rights Network.

“For many jobs, I think many employers have discovered that presence in the office is not an essential job function,” he said.

Employers don’t have to provide an accommodation if it would be too expensive, substantial or disruptive—though proving that may be difficult.

“An employer that has, say, 20,000 employees with 100 people doing the exact same job, may not be able to claim that it’s an undue hardship having, for example, a modified schedule to allow for doctor’s appointments or treatment,” said Yvette Lee, a HR knowledge advisor with the Society for Human Resource Management, a professional human resources membership association.

The ADA calls for broad coverage of people with disabilities, but there still are legitimate disagreements between employers and employees about what is or isn’t a reasonable accommodation for workers recovering from Covid-19.

While refusing to provide a requested accommodation could lead to a discrimination claim against them, employers aren’t compelled to give employees special allowances when it comes to job performance.

“The ADA does not prohibit you from requiring employees to do the essential functions of the job they are required to do,” said Jim Paretti, a shareholder and member of the Workplace Policy Institute at Littler Mendelson P.C. “If someone is either not asking for the accommodation or asks for one, and even with the accommodation, is still not getting the job done the way the job needs to be done, you can counsel and discipline them.”

Employees have to be the ones to request an accommodation and be up front about their limitations, employment lawyers say.

An employer doesn’t legally have to bring it up, and the “safe” advice is not to, said Rob Duston, a Washington, D.C.-based partner with Saul Ewing Arnstein & Lehr LLP who works with managers on workplace issues.

“The health questions you ask and details could be prying unless the employee wants to talk about it,” he said.

In this video, we explore the looming health insurance crisis for the millions of Americans who have contracted Covid-19. (Video by Andrew Satter; Executive Producer: Josh Block).

Doctoring Lunch

Talla tries to schedule her doctor’s appointments between noon and 1 p.m., but sometimes it’s impossible to limit them to the lunch hour. A recent CAT scan took two hours. After being in and out of the hospital with Covid-19 complications four times over four months, she said she’s trying to connect with her human resources department.

“It’s difficult trying to juggle the doctor’s appointments and work at the same time,” she said, especially since she’s already exhausted all her vacation and personal leave for the year.

Workers out sick with Covid-19 or to care for an ill family member can take up to 12 weeks of leave under the federal Family and Medical Leave Act if they work for a company with more than 50 employees. That leave can be taken intermittently, but it’s unpaid time. It also doesn’t extend to employees who want to avoid the office to lessen their exposure to the virus, according to guidance from the Labor Department’s Wage and Hour Division.

Only thirteen states and Washington D.C. have laws that require employers to provide paid sick leave, according to SHRM.

Under the Families First Coronavirus Response Act, signed into law in March, employers with under 500 employees have to give workers two weeks of paid sick leave and two weeks of paid expanded family and medical leave if they have symptoms of Covid-19, have to quarantine or take care of someone who does.

But those provisions of the law expire on Dec. 31 and it’s unclear whether they extend to people with residual conditions.

“I don’t think anyone really thought about long-term at that time,” Swartz said.

Stefanie Miller, 53, has scarring on her face from the straps of the ventilator she was on for 21 days between April and May. The second grade teacher from Plantation, Fla. is still struggling with side effects from Covid-19.
Photographer: Scott McIntyre/Bloomberg

Short-term disability insurance may be an option if an employee has a disabling condition due to Covid-19 that prevents them from performing the material duties of their job. It’s a common employee benefit, Kimberly Jones, a partner at Faegre Drinker Biddle & Reath LLP, said in an email.

Short-term disability typically lasts 26 weeks and covers 60% to 100% of the employee’s salary. The amount is determined by the employer. If the employee is still disabled when the short-term disability benefits expire, long-term disability insurance may be an option.

Again, the amount of salary covered by long-term disability is determined by the employer or the policy offered by the insurer, but it’s usually 60% to 70%, Jones said. The employer also determines how long it lasts, but most allow it to be paid through age 65.

There may come a point, however, when an employer needs their employee back. In those situations, human resource experts say, employers should consult legal counsel before firing anyone.

“I’m foreseeing there’s going to be litigation that comes out of this and it’s just a matter of time, if you will, when individuals are going to challenge how employers may be addressing some of these situations,” Lee said.

To contact the reporters on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Bernie Kohn at bkohn@bloomberglaw.com

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