What Long Haulers Should Know About Disability Law and Federal Guidance
Surviving a COVID infection may not be a one-time affair. Researchers and medical authorities studying COVID have suggested that a post-viral “long COVID” condition has created a group of legitimately sick workers known as “long haulers.” These Covid survivors unfortunately still suffer from various debilitating symptoms weeks and months after their initial diagnosis.
On July 26, 2021 the Biden administration announced it would take steps to legally support and protect Covid long haulers. While this is welcome news for workers and their families, it is not a guarantee that all symptoms and Covid situations will be recognized and qualify for disability insurance benefits.
Let’s review some key points from the new federal guidance and protections, common long haul symptoms, and what you need to do ahead of filing a cogent and comprehensive long COVID-related disability insurance claim.
The Department of Justice and the Office for Civil Rights of the Department of Health and Human Services (HHS) jointly released guidance that has the support of the White House, and is publicly available. Topics include information about accommodations in the workplace and disability support services.
One of the most critical updates is the indication that long haulers may now be recognized as having disabilities if symptoms “substantially limit[s] one or more major life activities,” as per Titles II (state and local government) and III (public accommodations) of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Patient Protection and Affordable Care Act.
The HHS provided examples of major life activities that might be impacted and limited by long COVID.
- A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function;
- 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;
- A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.
The examples of major life activities will grow as more is learned about COVID and more data is gathered by health organizations.
In February 2021, JAMA Network Open released a study finding that nearly 30% of COVID-19 patients reported persistent physical and mental symptoms up to nine months after getting the illness.
These symptoms stem from long-term pulmonary issues, neurological and psychiatric issues and post-viral fatigue, and often include:
- Shortness of Breath and Lung Damage
- Sleeping Disorders
- Heart Palpitations
- Enlarged Heart
- Gastrointestinal Issues
- Anxiety and Depression
- Brain Damage
- Cognitive Issues, and more.
The symptoms list continues to grow as we learn more about this disease that just won’t go away. Many of these symptoms are also recognized by the Social Security Administration (SSA), which also sets their own standard for disabling conditions.
Unfortunately, these lingering and debilitating symptoms often restrict and limit a workers’ ability to perform their occupations. That does not mean long haulers will instantly receive long-term disability insurance benefits from their employers or from their own private disability policies. The HHS states:
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. The CDC and health experts are working to better understand long COVID.
Considering Filing A Disability Insurance Claim?
The federal protections being enacted may help long haulers filing new claims or those who were previously denied. If an employee’s long COVID symptoms are recognized as disabilities, it may help their individual claim if they were previously denied. A judge may view those denials as “wrongful” should a claimant file their Federal ERISA or individual lawsuit after administratively appealing.
Remember, the language in the new guidance is not a guarantee; this is a constantly-evolving area of disability law and insurance carriers may not be so quick to pay out.
So what can you do?
Familiarize yourself with what it means to be disabled under your private policy or group employer-sponsored coverage and make sure that your condition qualifies as a disability. Document all your symptoms as well as related medical visits, treatment, medication, and missed work days.
An experienced disability lawyer can review your insurance policy to help frame your long COVID claim to your employer-sponsored disability plan as well as private, individually-purchased plans. The absolute best defense against a wrongful claim denial is to retain an experienced Employee Retirement Income Security Act (ERISA) attorney or bad faith individual disability lawyer.
The award-winning individual and nationally renowned group long-term disability attorneys at DarrasLaw always offer a free disability policy analysis and free claim consultation. Our free service helps determine whether your individual, group or association related policy entitles you to short and/or long-term disability benefits. If you suffer from any type of mental or physical injury or illness that prevents you from performing the important duties of your occupation, call us today at (866) 270-3770 or contact us online.