On July 26, 2021, the Departments of Justice and Health and Human Services issued new guidance categorizing long COVID as a qualifying disability under the Americans with Disabilities Act (“ADA”).
Below, we discuss the impact this guidance will have on long term disability benefits for COVID long haulers.
What is long COVID?
Many people who had COVID-19 continue to experience symptoms after the initial acute illness passes. The medical community calls this condition “long COVID.” Those who experience these lingering COVID symptoms are referred to as “COVID long haulers.”
COVID long haulers can suffer from a range of symptoms, including:
Long COVID also may damage the cardiovascular, respiratory, kidney, and neurological systems. While long COVID is a relatively new condition, medical professionals agree that its symptoms can be severe and debilitating.
Is long COVID a disability under the ADA?
It can be. The new guidance states that long COVID can be a disabling condition, but that doesn’t automatically mean that you’ll be considered disabled under the ADA.
Under the ADA, you’re only considered disabled if you are substantially limited in one or more major life activities. Major life activities include things such as working, breathing, eating, sleeping, and many more basic activities.
According to the July 2021 statement, “[a]n individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity.” This means you’ll need to see a doctor to evaluate your symptoms.
What does the new guidance mean for people with long COVID?
The new guidance from the federal government provides legal protections for people who have long COVID. The guidance forbids discrimination because of a disability stemming from long COVID at work, at school, in the health care system, and in other businesses.
This guidance means that employers, schools, health care systems, and businesses must make accommodations for those disabled with long COVID. For example, a student may have the right to additional time to complete a test if their long COVID makes it difficult for them to focus.
However, the guidance provides that any requested accommodations must be reasonable. For example, if you feel you can’t work in your office due to your long COVID, you may ask to work from home permanently. Your employer may argue that your job duties demand working in the office, so allowing you to work remotely would be unreasonable.
Is long COVID a disability under my long term disability policy?
Yes. If you have medical evidence that your long COVID symptoms prevent you from working, then you may be disabled under the terms of your policy. You need to have strong evidence of your diagnosis, symptoms, and work restrictions and limitations as a result of your illness.
How do I prove that my long COVID is disabling?
COVID long haulers are likely to face challenges when they try to prove that their long COVID condition is disabling. First, there is no single objective diagnostic test for long COVID. The symptoms can range from shortness of breath to dizziness, cardiovascular issues, brain fog, depression, and anxiety. Additionally, given that long COVID is a newly emerging diagnosis, it isn’t clear what exactly causes the symptoms or how long they will last.
However, you can still prove that your long COVID prevents you from working.
Getting a long COVID diagnosis for a long term disability claim
Your doctor will likely base a diagnosis on the timeline of your symptoms. For example, if you tested positive for COVID-19, experienced severe symptoms, and didn’t recover fully from those symptoms in the following months, your doctor may diagnose you with long COVID.
Your doctor may also make a long COVID diagnosis by ruling out other common causes for your symptoms through examinations and testing. Your doctor should be able to provide an opinion that your symptoms are the lingering effects of a COVID-19 infection.
Ultimately, demonstrating the frequency and severity of your symptoms through objective measures will be more important than a specific diagnosis.
Objective medical evidence of long COVID
Objective medical evidence is a key aspect of your long COVID disability claim. This medical evidence will come from your treating providers. For this reason, having a supportive doctor is invaluable. If your doctor thinks you’re still able to perform your job, it will be difficult to convince your insurer that you qualify for benefits.
Here are some examples of objective medical evidence that would support your claim.
- Medical records. These records include treatment notes from doctor appointments, inpatient hospital records, testing or lab results, and the like.
- A narrative report from your doctor. A narrative report is a letter from your doctor explaining your history of long COVID and how it causes work limitations and restrictions. Your doctor’s letter should include their examinations and observations, your treatment history, and any objective measures of your symptoms.
- A medication list. This list should include all medications that you’re taking, the dosage, and any side effects they cause.
Medical records and an opinion letter from your doctor can go far, but a personal narrative is your chance to explain in your own words how your long COVID symptoms affect your job duties. Your written statement can address how long COVID has affected your work and life in detail.
Some symptoms of long COVID, such as fatigue and headaches, are subjective. Writing a personal narrative can further explain and substantiate your subjective symptoms.
Your personal narrative should include details on the following:
- The history of your long COVID illness
- Your specific symptoms (both physical and cognitive)
- The severity and frequency of your symptoms
- Any factors that trigger your symptoms
- What duties your occupation entails
- How your long COVID prevents you from performing your occupational duties
- Your attempts at treatment and current condition status
COVID long haulers often experience brain fog, memory impairment, trouble with problem-solving, and other cognitive symptoms. If you’re experiencing any cognitive symptoms, you may need a neuropsychological evaluation.
A neuropsychological evaluation measures your cognitive deficits in an objective, scientific manner. The evaluation is conducted by a neuropsychologist. The neuropsychologist will speak to you about the background of your long COVID and review your medical records to familiarize themselves with your condition.
The evaluation consists of a series of tests assessing your cognitive abilities, such as attention span and memory. Embedded into the evaluation is “validity testing.” This ensures that you’re putting your best effort into the testing.
Once complete, the testing neuropsychologist will draft a report with the test results and their findings. This in-depth report can provide crucial evidence of your long COVID symptoms and how they interfere with your ability to work.
COVID long haulers commonly experience fatigue, a lack of stamina, and/or significant tiredness after exertion (called post-exertional malaise). If you’re often short of breath or suffer from other fatigue-related symptoms, you may request cardiopulmonary exercise testing (CPET).
CPET assesses whether your heart and lungs have an abnormal reaction to exercise. CPET monitors your blood pressure, oxygen levels, and lung performance. By doing so, it evaluates your capacity for exertion.
Tilt table test
Long COVID may cause bouts of dizziness, fainting, or general lightheadedness. These symptoms can be difficult to validate objectively in routine doctor appointments. If you’re pursuing a disability claim and experience these symptoms, you may need a tilt table test.
A tilt table test can determine whether any of your long COVID symptoms are due to your heart rate or blood pressure. If so, you may be suffering from dysautonomia, a condition that causes your autonomic nervous system to malfunction. Your autonomic nervous system is the system that maintains your internal temperature, regulates your breathing, maintains your blood pressure, and controls your heart rate.
In a tilt table test, you’ll lie flat on a motorized table. During the test, the table will move into different positions for periods of time. The person administering the test will ask you to report symptoms like nausea, clamminess, or lightheadedness. They will also monitor your heart and lungs.
The results of a tilt table test will give the insurance company objective evidence demonstrating how the symptoms of long COVID affect your ability to sit, stand, or transition between sitting and standing while at work.
Functional capacity evaluation
Many COVID long haulers suffer from a variety of physical problems. These problems may include abnormal movements, limited movement, muscle weakness, difficulty positioning, balance issues, numbness or tingling, pain, poor dexterity, trouble using your larger muscles, or fatigue with physical activities.
If you experience any physical deficits due to long COVID, you may need a functional capacity evaluation (FCE). An FCE consists of a series of tests conducted over two days. This test measures many aspects of your physical condition, including:
- Postural intolerances
- Range of motion
- Physical strength
- Fatigue levels
- Lifting and carrying abilities
- Tolerances for walking, sitting, and standing
- Fine and gross manipulations
The tests involve different tools and maneuvers. Your FCE evaluator will repeat many of the tests on the second day to determine whether your functional capacity has decreased because of fatigue.
Your FCE results will offer an objective measure of your physical capabilities and limitations. Because the FCE also demonstrates reduced functional capacity from one day to the next, it also can show your insurer that you’re unable to maintain a regular work schedule.
Vestibular function testing
Common symptoms of long COVID include issues with your vestibular system, which includes your inner ear and brain. These symptoms may include:
- Balance issues
Vestibular testing measures the function of your inner ear. This testing objectively determines any abnormalities with your inner ear that may explain the above symptoms. It may also assess the severity of your symptoms.
For disability claim purposes, the results can explain why you’re experiencing difficulty with focus, how staring at a computer screen triggers your symptoms, and why you feel disoriented when you move between positions. If you often feel off-balance or dizzy, the results of vestibular function testing may substantiate your long COVID disability claim.
How can a long term disability attorney help with a long COVID disability claim?
While we still have much to learn about long COVID, experts agree that it is a serious medical condition. And because the symptoms of long COVID may result in a disability, you need to know how to prove your long COVID disability to your insurer.
Before your insurer will approve your long COVID long term disability benefits, you need to gather sufficient medical evidence to support your claim. Additional testing and personal statements can also strengthen your claim.
However, we always recommend consulting an attorney. An experienced ERISA attorney will know what evidence to produce to the insurer, manage the gathering of medical records, and handle all communications with the insurer.
If you’re a COVID long hauler suffering from any of the symptoms above, or if you’ve already been denied disability insurance benefits for your long COVID, our New York long term disability lawyers can help. Call Riemer Hess LLC at (212) 297-0700, or click the button below for a consultation on your long term disability case.