‘Long COVID’ spurring legal questions for employers - Albuquerque Journal

‘Long COVID’ spurring legal questions for employers

Health care workers insert a breathing tube into a COVID-19 patient at Guadalupe County Hospital in Santa Rosa in 2020. (Eddie Moore/Journal)

During the first week of January, reported COVID infections in the U.S. consistently topped half a million a day.

Looking ahead, that’s a lot of recovering patients.

The lucky ones will have had only mild illness, or no symptoms at all. But not everyone is lucky. Some will have symptoms that persist long after their body has cleared the virus itself. The colloquial term for their condition is “long COVID.”

A recent article in JAMA Network Open used the more formal acronym PASC (for post-acute sequelae of COVID) and described it as a disease unto itself. By whatever name it’s called, the medical issues it raises are already mutating into legal ones.

In November, Nature, the venerable British science journal, reported that U.K. researchers estimated “between 7% and 18% of people who had COVID-19 went on to develop some symptoms of long COVID that lingered for at least 5 weeks.”

That’s already a lot, given the millions who have contracted the virus, but the percentage may be considerably higher among those with severe infections. The JAMA article systematically reviewed prior studies cataloguing the experience of a quarter-million survivors of COVID, most of whom had been hospitalized, and found that more than half had symptoms that persisted for six months or more.

Some of the most common long-term symptoms were chest imaging abnormities (62.2%), fatigue or muscle weakness (37.5%), difficulty concentrating (23.8%), memory deficits (18.6%) and cognitive impairment (17.1%). These last three symptoms have collectively become known as “brain fog.”

The Nature article suggested two possible causes of long COVID. It may be that “a reservoir of the coronavirus lingers after the acute infection, lurking in various tissues.” Or else a “broad immune response triggered by the initial infection” continues even after the infection itself is cleared.

Other studies suggest the virus can directly attack organs other than the lungs and airway. Yet a fourth mechanism was recently outlined in a Guardian column by South African physiologist Resia Pretorius, who argued that very small blood clots (microclots) cause the tissue damage that produces the symptoms of long COVID.

Pretorius wrote: “As many as 100 million people worldwide already suffer from long Covid.” That figure is so huge that you can divide it by 10 and still be left with a humanitarian and public health crisis — with significant legal ramifications.

Just last month, the federal Department of Health and Human Services issued guidance on long COVID in the workplace. The guidance is essential reading for the decision-makers of every business or agency subject to the Americans with Disabilities Act and other federal anti-discrimination laws.

Search for “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557.”

In the briefest possible summary: Long COVID qualifies as a disability under the ADA and other laws that protect people with disabilities from discrimination, including job discrimination.

In practical terms, this means an employee with long COVID is entitled to “reasonable accommodation” in the workplace. An accommodation allows a qualified person with a disability to perform a job’s essential functions. The accommodation is reasonable so long as it doesn’t impose undue hardship on the employer.

The federal Equal Employment Opportunity Commission’s website explains: “Accommodations might consist of schedule changes, physical modifications to the workplace, telework, or special or modified equipment.” That list is by way of example. Different accommodations might be called for in particular circumstances. (For more detail, search for the EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” part N.)

Firing a person because they have a disability violates the law. But that’s not the whole story. As the EEOC website emphasizes, “an individual still needs to be qualified for the job held or desired.” Part of the unfolding tragedy of long COVID is that it could render a previously qualified person unqualified.

Long COVID is a particular problem among health care workers, whose jobs put them at heightened risk of contracting COVID and therefore of developing post-acute symptoms.

It’s surprisingly difficult to pin down the total number of health care workers who have tested positive in the U.S. But it’s a lot. A single snapshot can serve as illustration: as of Jan. 6, “a total of 50,353 healthcare workers and first responders have been confirmed with COVID-19 in Los Angeles County,” according to the county’s public health department.

Such workers might feel pressure to return to work before their symptoms have fully resolved, whether from pride, duty, financial necessity or the threat of termination. But what if their residual symptoms include brain fog?

The novel coronavirus might soon be giving us novel malpractice suits.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.

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