Long-Haul COVID-19 Illness May Qualify as a Disability Under the Americans with Disabilities Act

Although most people with COVID-19 recover within weeks, some continue to experience symptoms months or longer following initial infection or may experience new or recurring symptoms at a later time. This condition is referred to as “long COVID” and those who suffer from this condition are often referred to as “long-haulers.” 

Due to the rise of long COVID as a significant health issue, the Office for Civil Rights of the Department of Health and Human Services (“HHS”) and the Civil Rights Division of the Department of Justice (“DOJ”) collaborated to develop guidance about whether individuals suffering from long COVID are considered to have a disability entitling them to protection under Titles II and III of the Americans with Disabilities Act (“ADA”) (which apply to governments and public accommodations), the Rehabilitation Act, and the Patient Protection and Affordable Care Act (“ACA”), all of which protect individuals with disabilities from discrimination. While the guidance is not directly applicable under Title I of the ADA, which governs private employers, it is nonetheless instructive and provides best practices for private employers. 

According to the Centers for Disease Control and Prevention (“CDC”), people with long COVID have a range of new or ongoing symptoms that can last weeks or months after infection with the virus that causes COVID-19 and that can worsen with physical or mental activity. Examples of symptoms of long COVID include but are not limited to: 

·  Difficulty breathing or shortness of breath

·  Tiredness or fatigue

·  Difficulty thinking or concentrating (sometimes referred to as “brain fog”)

·  Cough

·  Chest or stomach pain

·  Headache

·  Fast-beating or pounding heart (also known as heart palpitations)

·  Joint or muscle pain

·  Sleep problems

·  Fever

·  Dizziness on standing (lightheadedness)

·  Mood changes

·  Change in smell or taste 

Long COVID may qualify as a disability under the ADA, the Rehabilitation Act, and the ACA if the symptoms or condition constitute a “physical or mental” impairment that “substantially limits” one or more major life activities. 

Major life activities are a broad category, including things such as caring for oneself, 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. The term also includes the operation of a major bodily function, such as the functions of the immune system, cardiovascular system, neurological system, circulatory system, or the operation of an organ. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity to “substantially limit” the major life activity and the limitations do not need to be severe, permanent, or long-term to qualify as a disability. Indeed, in a joint statement issued July 26, 2021, the DOJ and HHS said “substantially limits” should be interpreted broadly and should not demand extensive analysis, and provided the following examples of situations in which a COVID-19 long-hauler might be substantially limited in a major life activity: 

·         A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities. 

• A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.

• A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking. 

However, long COVID is not always a disability. An individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity. When long COVID does qualify as a disability, those suffering from long COVID are entitled to protections and certain accommodations under the above laws, which may include leave, part-time work and/or job restructuring. People with severe COVID-19 symptoms that last for months may also be covered by the Family and Medical Leave Act (“FMLA”) in addition to the ADA, while those who recover quickly may not be covered by the ADA but might be protected by the FMLA. 

If you are an employee or employer seeking guidance on whether long COVID qualifies as a disability, and the scope of the laws’ coverage and application, the employment attorneys at Erickson | Sederstrom can assist you.

‘Patient Safety Near Miss’ Justifies Termination Without Age or Disability Discrimination Liability

After a university dismissed a member of its medical residency program, she sued for wrongful termination and alleged she had been a victim of age discrimination under the Age Discrimination in Employment Act (ADEA) and the Nebraska Fair Employment Practices Act (NFEPA) as well as disability discrimination and retaliation under both under the Americans with Disabilities Act (ADA) and the NFEPA. The U.S. 8th Circuit Court of Appeals (which covers Nebraska employers) recently upheld the dismissal of her claims without a trial, however, affirming a U.S. District Court for the District of Nebraska ruling.

Facts

Dr. Mary E. Canning, age 57, became an internal medicine resident at Creighton University in July 2015. During the first year of residency, she scored in the lowest 15 percent in the country on an in-service examination. Several doctors expressed concerns about her basic skills and level of competence, including memory issues.

After reviewing each resident's progress, a committee determined Canning hadn’t evolved in several areas, making it necessary for her to repeat the first year of residency. The panel let her know she was being placed on a leave of absence with pay until a fitness-for-duty evaluation could be conducted proving she was safe for patient care. She also was told her residency contract wouldn’t be renewed regardless of the evaluation’s results.

Canning retained counsel who sent the committee members a letter outlining their alleged acts of unlawful discrimination and objecting to her participation in the fitness-for-duty evaluation. Creighton's counsel in turn offered a firm resolve that she could repeat the first year of residency so long as she agreed to the evaluation and was cleared for duty.

A neuropsychologist evaluated Canning and found her to be in good mental health. The fitness-for-duty evaluation’s results also gave no indications of medical or psychiatric conditions that would preclude her from performing her duties. Therefore, she was permitted to repeat the residency intern year.

Canning continued to struggle academically, showing an inability to complete assessments or improve to the level of what would be expected from a first-year resident. After taking the in-service exam for the second time and scoring in the lowest seven percent in the country, she was placed on probation.

While on probation, Canning made an error that could have affected a patient’s safety. She discharged a patient admitted for a pulmonary embolism without providing a prescription for an anticoagulant. Her supervisors had previously reviewed the discharge plan with her and instructed her to prescribe the anticoagulant.

Canning admitted the error was “extremely serious.” The committee let her know she had been dismissed from the residency program, pointing to the “significant patient safety near miss” as its reason.

Resident’s claims and lawsuit

After Canning sued for age and disability discrimination and retaliation, Creighton offered nondiscriminatory reasons for terminating her from the residency program by thoroughly documenting her:

·         Lack of medical knowledge;

·         Substandard clinical skills; and

·         Inability to perform a first-year internal medicine resident's duties in a timely fashion.

The documentation showed Canning’s performance in the residency program lacked progression and was at the minimum standards expected of a first-year resident. Creighton argued it “had a right—if not an obligation—to respond to an act or omission affecting patient safety with termination of the responsible individual.”

Creighton asked for summary judgment (dismissal without a trial), and the district court agreed, concluding there wasn’t enough evidence for a jury ever to rule in Canning’s favor. She appealed.

On appeal, Canning argued the district court erred when it concluded no rational fact-finder ever could conclude her termination was motivated by age, but the 8th Circuit affirmed the ruling. It pointed out Creighton produced a legitimate, nondiscriminatory reason for the termination by explaining she had made an “egregious” error affecting patient safety in spite of “supervisor and attending efforts.”

Thus, Creighton satisfied its burden. To rebut the reason, Canning needed to show it was pretextual (or a cover-up for illegal discrimination). But, the 8th Circuit agreed with the district court that her proof had fallen short.

Bottom line

Sensitivity to an employee’s potential or actual disabilities is a good practice and required by the law in terms of considering accommodations. Often, older employees’ age may lead to the question of disabilities. But safety concerns, particularly in the medical arena, will often be paramount and provide justification for dealing with an employee’s errors that threaten the safety of a patient (or coworker, client, customer, or the public).

Bonnie M. Boryca is an attorney with Erickson│Sederstrom, P.C., in Omaha, Nebraska. You can reach her at 402-397-2200 or boryca@eslaw.com.