Are you in it for the Long Haul?  Long Term COVID -19 Employee Disability 

By: Chava Cohen

Employers are excited to have many of their employers back at work.[1] There are many employees who are returning following prolonged absences due to the pandemic.[2]  However, there are many who were furloughed and or fired due to having long-term effects of COVID.[3]  

In 2021, President Biden announced his plan whereby applying the federal disability discrimination law protections to individuals suffering from “long COVID.”[4]  This act is an addition to the Americans with Disabilities Act (hereinafter “ADA”).[5] While the ADA is universally accepted as a necessary addition to U.S. rights legislation, it poses a challenge for employers by prohibiting discrimination, while requiring them to provide reasonable accommodations.[6]

Under the ADA, “disability” means, “an individual who has a physical or mental impairment that substantially limits one or more major life activities.”[7]  Major life activities includes but is not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, standing, bending, reading, and concentrating.[8]

According to the Centers for Disease Control and Prevention (CDC), “long COVID” applies to individuals who continue to experience lingering COVID symptoms, or who have new/recurring symptoms months after first being sick with the COVID-19 virus.[9] The individuals are referred to as “long-haulers.”[10]  The most common symptoms of long COVID, which tend to worsen with physical or mental activity, include: tiredness or fatigue; difficulty thinking/concentrating (i.e. “brain fog”); shortness of breath; headache; dizziness; heart palpitations; chest pain; cough; joint/muscle pain; depression or anxiety; fever; and/or loss of taste or smell. Some individuals also experience damage to their heart, lungs, kidneys, and brain. 

As the ADA’s coverage has expanded, the percentage of alleged disability discrimination filed with the Equal Employment Opportunity Commission (hereinafter “EEOC”) has increased.[11] These filings make up 36.1 % of EEOC charges filed in 2020.[12]  In the past two years alone, COVID -19 cases filed based on employment discrimination has reached an all-time high of 6,503 cases; most of these cases were filed in New York, New Jersey, and California.[13]

One of the first of these cases involved the former general counsel for New York plastic surgery, Scott Edelman, who sued Aristocrat Plastic Surgery PC (hereinafter “APS”), which operates two plastic surgery practices in midtown Manhattan and Long Island in federal court.[14]  Edelman, who had been APS’ vice president of business affairs and general counsel since 2013, said he told his employer in March 2020 that he was being hospitalized and put on supplemental oxygen.[15] A few days later, while lying in a hospital bed, barely able to breathe, and afraid for his life, Edelman received a text from his employer that he was “temporarily laying him off.” 

When Edelman was discharged from the hospital on April 6, 2020, he had developed long-haul COVID -19 and continued to suffer the effects of the illness. Rather than offering him and accommodations, Edelman alleged his boss called him on May 2020 and told him that he would not be rehired when APS brought back the rest of its furloughed staff.[16]  He also claimed that APS refused to honor their contract by giving him money for commissions they were wrongfully withholding from him.[17]  This case was settled. But it raises a larger issue of the many more employees who are stuck in this similar situation.[18]

In June 2022, the Census Bureau added four questions about long COVID to its Household Pulse Survey (hereinafter HPS), providing researchers a better understanding of how prevalent the virus still is.[19]  The results showed around 16 million working- age Americans have long COVID today.[20] Of those, 2 to 4 million are out of work due to Long COVID.[21]

Long COVID has been described as our “next national health disaster” and the “pandemic after the pandemic”.[22]  We still do not know how many people are affected, how long it will last for those affected, and how it could change employment and health coverage landscapes.[23] One thing is for sure, employers will likely face numerous COVID-19 related lawsuits.[24]  The easiest and most efficient way to make reasonable accommodations is by allowing and encouraging a remote work-force.[25]  Long- term COVID-19 begs the larger question of whether future diseases/pandemics will further elasticize the ADA framework.[26]


[1]  In it for the Long Haul? White House Seeks to Provide ADA Coverage to Those with “Long COVID”, Fisher Phillips (July 28, 2021), https://www.fisherphillips.com/news-insights/in-it-for-the-long-haul-white-house-seeks-to-provide-ada-coverage-to-those-with-long-covid.html. 

[2]   Id.

[3]  Supra note 14. 

[4]  Fisher Phillips, supra note 1; see also Press Release, White House, Fact Sheet: Biden- Harris Administration Marks Anniversary of Americans with Disabilities Act and Announces Resources to Support Individuals with Long COVID (July 26, 2021) (on file with author). 

[5]  Fisher Phillips, supra note 1.

[6]  Fisher Phillips, supra note 1. 

[7] Id.  See also Americans with Disabilities Act (ADA) Tit. II of 1990. 

[8]  Id. 

[9]  Fisher Phillips, supra note 1 (defining CDC guidelines on long COVID); see also Ctr.  for Disease Control & Prevention: Long COVID (Sept. 1, 2022), https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects/index.htmlsee also U.S. Dep’t of Health & Hum. Serv: Civ. Rts. & Covid-19 (July 29, 2022), https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/index.html.

[10]  Id. 

[11]  Id. see also Fisher Phillips, supra note 9 (defining symptoms of long COVID). 

[12] Fisher Phillips, supra note 1. 

[13] Fisher Phillips, COVID-19 Employment litigation Tracker And Insights, https://www.fisherphillips.com/innovations-center/covid-19-employment-litigation-tracker-and-insights/index.html (last visited Oct. 30, 2022). 

[14] Edelman v. Aristocrat Plastic Surgery, P.C., No. 2:21-cv-03109 (E.D. N.Y. filed June 2, 2021). 

[15] Id. See also Rachel Scharf, NY Att’y Says He Was Fired for Long- Haul COVID -19, Law360 (June 2, 2021, 6:05 PM EDT), https://www.law360.com/articles/1390383

[16] Scharf, supra note 15. 

[17] Id. 

[18] Id. 

[19]   Katie Bach, New Data Shows Long COVID is Keeping as Many as 4 Million People Out of Work, Brookings (Aug. 24, 2022) https://www.brookings.edu/research/new-data-shows-long-covid-is-keeping-as-many-as-4-million-people-out-of-work/

[20]   Id. 

[21]  Id. 

[22]  Alice Burns, What are the Implications of Long COVID for Employment and Health Coverage?, KFF (Aug. 1, 2022), https://www.kff.org/policy-watch/what-are-the-implications-of-long-covid-for-employment-and-health-coverage/

[23] Id. 

[24]  Fisher Phillips, supra note 13.

[25] Francesca Stead Sellers, ‘We are in Trouble”: Study Raises Alarm About Impacts of Long COVID, Wash. Post, (Oct. 13, 2022), https://www.washingtonpost.com/health/2022/10/12/long-covid-study-scotland/

[26] See generally Fisher Phillips, supra note 1 (discussing historical expansion of ADA).

Advertisement

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: