By Jeff Jones
Special to the UCBJ
On July 26, 2021, the Department of Health and Human Services (“HHS”) and the Department of Justice (“DOJ”) issued a joint publication entitled “Guidance on Long COVID as a Disability under the ADA, Section 504 (of the Rehabilitation Act of 1973) and Section 1557 (of PPACA)” (“the HHS/DOJ Guidance:). https://www.ada.gov/long_covid_joint_guidance.pdf. The Guidance was issued to address how these federal laws are implicated when an individual suffers from the symptoms of “long COVID.”
In a separate publication from the Centers for Disease Control (“CDC”), the CDC has stated that people with long COVID have a range of symptoms which include tiredness/fatigue, difficulty thinking or concentrating (“brain fog”), shortness of breath, headaches, chest pain, depression, or anxiety, and/or loss of taste or smell. https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects.html.
Although, the CDC’s list is not exhaustive, these are the symptoms most commonly reported in connection with long COVID. Studies estimate that approximately 10-13% of those who have been diagnosed with COVID-19 could experience symptoms of COVID for longer than 12 weeks from the initial onset. While there is no set definition for long COVID, symptoms can persist for months and can range from mild to incapacitating. The British National Institute for Health and Care Excellence considers long COVID to be present where “signs and symptoms that develop during or after an infection consistent with COVID-19, continue for more than 12 weeks and are not explained by an alternative diagnosis.”
The HHS/DOJ Guidance makes it clear that where an individual’s lingering COVID symptoms rise to the level of a disability under the ADA (or similar law), employers must then take steps to engage in the interactive process to identify potential reasonable accommodations (subject to undue hardship), as well as ensure the individual is protected from discrimination, harassment, and retaliation in the workplace. In diagnosing “long COVID,” health care providers may use various phrases and terms such as post-COVID-19 syndrome, post-acute sequelae of COVID (PASC), chronic COVID syndrome, or long-haul COVID.
Two recent court cases illustrate how these issues might be presented to employers.
In the case of Edelman v. Aristocrat Plastic Surgery, P.C., et al., (“APS”) (U.S. Dist. Ct., E. D. NY 2021), the plaintiff has sued his employer for violations of federal and state disability laws, and in the Complaint, he includes the following allegations: The plaintiff, Edelman, worked as Vice President of Business Affairs and General Counsel for the defendant. In March 2020, the plaintiff contracted COVID and within a matter of days, he was admitted to a hospital. Within a few days, he was discharged but shortly afterwards, his conditions returned, worsened and he was readmitted. During his second hospital stay, while “lying in a hospital bed, barely able to breathe, and afraid for his life,” Edelman received a text message from his employer, stating that he had been “temporarily laid off” from his employment, along with other APS employees. Within a few days, APS cut off Edelman’s access to all of its systems, including email. A few weeks later in May 2020, APS informed Edelman that he would not be brought back to staff but would be terminated for good. However, just a month later in June, APS allegedly brought back all of its staff to work, except for Edelman.
Plaintiff Edelman alleges that at no time did APS engage in any form of interactive process to discuss possible accommodations that might have allowed Edelman to return to work. Plaintiff alleges his employer, APS, failed to provide him with a reasonable accommodation and took adverse employment action against him because it regarded him as disabled.
The defendant, APS, recently submitted a request to the Judge for leave to file a Motion to Dismiss, arguing that at the time of the Edelman’s termination in May 2020 “no one in the world understood COVID-19 to be anything more than a transitory, albeit serious illness” and that, at that time, no reasonable accommodation was required of APS. As explained below, this defense is likely to be more complicated and difficult to establish than it might appear.
The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities (or)…a record of such an impairment, or being regarded as having such an impairment.” 42 U.S.C. §12102(1). The ADA, as amended by the ADAAA in 2008, does provide that an impairment which is “transitory and minor” would not be considered a disability under the “regarded as” definition of a disability; however, while the term “transitory” is defined to be of “an actual or expected duration of six months or less,” the statute does not define the term “minor.” 42 U.S.C. § 12102(3)(B).
Thus, when faced with a long-COVID issue, employers should not readily embrace the “transitory” argument for two reasons: (1) What a difference a year makes, right? It is risky to assume that a Judge or jury in 2021 would agree that a case of COVID-19 is transitory and/or minor; (2) Also, it’s a position that is not likely to be a slam-dunk, as numerous courts have held that an impairment that is severe enough, even though “temporary,” can constitute a disability under the ADA.
In another case filed in March 2021, plaintiff Kathleen Hamada, sued her employer also based on disability discrimination claims. In Hamada’s case, she contracted COVID-19 in April 2020. Her healthcare provider placed her on medical leave for six weeks and she returned to work in June 2020. However, she suffered from the effects of the coronavirus and was considered to be a “long-haul COVID-19” patient. When she requested additional leave to address the continuing symptoms, her supervisor told her “you better not,” — allegedly referring to plaintiff’s request for leave. Based on this comment, the plaintiff chose not to seek medical leave and consequently she experienced absences from work due to the illness and effects of COVID-19. As a result of the absences, her employer issued disciplinary action, and in October 2020, after 33 years of employment with the defendant, the plaintiff was terminated based on her employer’s attendance policy. The plaintiff alleged the employer’s failure to accommodate her and discrimination in terminating her violated the California state law, which is modeled after the Americans with Disabilities Act. Hamada v. Community Hospitals of Central Cali., (21CECG00808; CA Superior Court, County of Fresno, 2021).
Although both of these cases are in the early stages, they serve to illustrate the risks to employers of failing to consider the compliance issues associated with long COVID.
Considering that an impairment can include any physiological disorder or condition that affects one or more body systems, such as a neurological, respiratory, cardiovascular, and circulatory systems, as well as a mental or psychological disorder, such as emotional or mental illness, long COVID could constitute a physical or mental impairment under the ADA and thus, trigger the need to engage in the interactive process and potentially provide a reasonable accommodation, subject to undue hardship. Of course, an employer is not required to eliminate an essential job function as a reasonable accommodation. With COVID cases continuing across the country, employers are advised to be alert to potential cases of long COVID, to evaluate such cases for ADA-related compliance in the same manner as other potential disabilities and accommodation needs, and to seek advice of employment counsel where needed.