A “long COVID” that spurs legal questions for employers

In the first week of January, COVID infections reported in the United States consistently exceeded 500,000 daily.

In the future, it will be many recovering patients.

The lucky person had only a mild illness or had no symptoms at all. But not everyone is lucky. Some people have symptoms that last long after the body removes the virus itself. The colloquial term for their condition is “long COVID”.

A recent article in JAMA Network Open uses the more formal acronym PASC (acute sequelae of COVID) to describe itself as a disease. Whatever name it is called, the medical problems it raises have already turned into legal problems.

In November, Nature, a venerable British scientific journal, estimated that British researchers “7% to 18% of people infected with COVID-19 developed symptoms of long COVID that lasted at least 5 weeks.” I reported.

Given the millions of people infected with the virus, this is already a lot, but the proportion of people with severe infections can be quite high. JAMA’s article systematically reviews previous studies cataloging the experiences of 250,000 survivors of COVID, most of whom are hospitalized and more than half have symptoms that last for more than 6 months. I found that I was there.

Some of the most common long-term symptoms are chest imaging abnormalities (62.2%), malaise or weakness (37.5%), poor concentration (23.8%), memory impairment (18.6%), and cognitive impairment (17.1%). )was. These last three symptoms have collectively become known as “brain fog.”

Nature’s article suggests two possible causes of long COVID. It is possible that “a reservoir of coronavirus remains after an acute infection and lurks in various tissues.” Otherwise, the “extensive immune response caused by the initial infection” will continue even after the infection itself has been resolved.

Other studies suggest that the virus may directly attack organs other than the lungs and respiratory tract. However, a fourth mechanism was recently outlined in a Guardian column by South African physiologist Resia Pretorius. He claimed that very small blood clots (microclots) cause tissue damage and cause long-term COVID symptoms.

Pretorius writes: “As many as 100 million people around the world are already suffering from long Covids.” The numbers are so large that dividing by 10 can leave a humanitarian and public health crisis. This has significant legal implications.

Just last month, the Federal Department of Health and Human Services released guidance on long COVID in the workplace. This guidance is an essential reading for decision makers at all companies or institutions subject to Americans with Disabilities Act and other federal anti-discrimination laws.

Search for “Guidance on” Long COVID “as a Failure Based on ADA, Section 504, and Section 1557.”

Summary as Concise as possible: Long COVID is considered a disability under ADA and other laws that protect people with disabilities from discrimination, including work discrimination.

In practice, this means that employees with long COVIDs are eligible for “reasonable accommodation” in the workplace. Accommodation allows qualified persons with disabilities to perform the essential functions of their work. Accommodation is reasonable as long as it does not cause excessive pain to the employer.

The Federal Equal Employment Opportunity Commission website explains: “Accommodation may consist of schedule changes, physical changes in the workplace, telework, or special or modified equipment.” The list is an example. Various accommodations may be required in certain situations. (For more information, search EEOC’s “What You Need to Know About COVID-19 and ADA, Rehabilitation Acts, and Other EEO Acts,” Part N.)

It is against the law to dismiss a person because of a disability. But that’s not all. As the EEOC website emphasizes, “Individuals need to qualify for a job that is held or desired.” Part of the tragedy that a long COVID unfolds is that previously qualified people can be disqualified.

Long COVID is a particular problem among healthcare professionals, whose work increases the risk of contracting COVID and thus the risk of developing post-acute symptoms.

Determining the total number of health care workers who test positive in the United States is surprisingly difficult, but there are many. As of January 6, according to the county’s public health department, one snapshot is, “In Los Angeles County, a total of 50,353 healthcare workers and first responders have been identified with COVID-19.” Become.

Such workers may feel pressure to return to work before their symptoms are completely resolved, whether due to pride, obligations, financial needs, or the threat of retirement. But what if those residual symptoms include brain fog?

The new coronavirus may soon bring us a new medical malpractice proceeding.

Joel Jacobsen is a writer who retired from his 29-year legal career in 2015. If you have a topic that you would like us to cover in future columns, please write it at the following address: Legal.column.tip[email protected].