By Mark Carey
The U.S. Government reports that individuals who have “recovered” from Covid-19 do not have a physical disability under federal disability discrimination laws. However, this conclusion is not accurate, and you need to know why.
In an Article on November 18, 2022, I reported that 60% of the U.S. population, 191 million people, have a disability called either Long Haul Covid-19 or “Recovered” from Covid-19. The following information will support this legal and medical conclusion and how businesses, insurance carriers and the federal government do not want to acknowledge it. A new study covering 5 million Americans also supports the conclusion that Covid-19 resides in the body post-infection and can lead to substantially increased risks of further medical consequences upon reinfection.
Federal Government Regards People Who Have Recovered from Covid-19 As Nondisabled
The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with the oversight and regulation of the American workplace, has stated “an employee whose COVID-19 results in mild symptoms that resolve in a few weeks”with no other consequences”will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.” (emphasis added) EEOC.gov
This is a very astounding conclusion given how little the federal government currently knows about Covid-19. We do not have a cure for Covid-19 and only limited temporary mitigation measures in the form of vaccines and boosters. The Covid-19 virus is still rampant throughout the country during this the third year of the pandemic. Yet, the federal government seeks to define who has a physical disability and who does not. Why the immediate rush to define disability? Is this a financial prophylactic measure for businesses, insurance carriers and the federal government itself?
If the government ruled that anyone who recovered from Covid-19 is disabled, each person would be protected from discrimination bias under Title I (employment) the Americans With Disabilities Act, the Rehabilitation Act of 1974 (employees employed in programs or activities receiving federal financial assistance) and Title II (public employment/state and local government activities) and Title III (private entities accommodations/access to businesses).
Declaring the Covid-19 disease a disability for those who already have “recovered” would unleash enormous economic chaos and uncertainty. The EEOC has stemmed this economic uncertainty by providing “guidance” that Covid-19 disease among recovered individuals is NOT a disability under federal disability laws. Once the EEOC issues the so called “Guidance”, courts then cite to the Guidance as a legal basis to interpret federal disability law. Once courts create precedent, other courts more likely will follow the precedent like a train derailment. Did you ever consider that lobbyists for insurance companies and businesses do not want the federal government to label people as disabled post Covid-19 recovery? It has already occurred, and you knew nothing about it.
There is also another factor to consider whether persons who have recovered from Covid-19 are disabled. In this country, we have a strong federal public policy to protect against discrimination bias in employment, public accommodations and programs receiving federal financial assistance. However, as of February 2023 I will be the first to assert that I have seen little to no discrimination bias cases, other than Long Haul Covid-19 cases, throughout the pandemic.
When there is no great push to protect a group of people who have recovered from Covid-19 from discrimination bias, then there is no likelihood that the federal government will implement laws to protect against such discrimination and provide an avenue for prosecution in the courts. So why write this article if there is no prevalence of disability discrimination bias against those who have recovered from Covid-19? The rationale here is that the jury is still out. The current medical data to support the presence of Covid-19 in the body systems of the recovered U.S. population indicate the virus lays dormant post recovery until the next wave of infection, thereby multiplying the medical consequences on the body. In a study published on Nature.com, discussed below, provides disturbing evidence based on a sampling of more than five million Americans. Based on this study, I argue the post-Covid-19 recovery population is disabled because their body systems (immune systems among others) are still substantially limited. In fact, the study found a substantial increased risk of medical consequences due to Covid-19 reinfection of pulmonary, cardiovascular, hematological, diabetes, gastrointestinal, kidney, mental health, musculoskeletal and neurological disorders. So much so that the authors of the study warned strongly against reinfection.
The Case of Long Haul Covid-19
The discussion about Covid-19 as a disability would not be complete unless we address Long Haul Covid-19 and how the federal government handles the condition.
A Study from the University of Southern California in July 2022 found that 23% of people infected with Covid-19 will become “long haulers” with symptoms lasting for months. We already know that 191 million people living in the U.S. contracted Covid-19, and 23% of them equates to an estimated 44 million people.
EEOC Chair Charlotte Burrows said, Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws the EEOC enforces. Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations. EEOC.gov
According to the federal government,
If you have Long Haul Covid-19, you may be considered an “individual with a disability” under civil rights laws, including the Americans with Disabilities Act (ADA), the Section 501 of the Rehabilitation Act of 1973 (Section 501), Section 504 of the Rehabilitation Act of 1973 (Section 504) and Section 1557 of the Patient Protection and Affordable Care Act (Section 1557). Under these laws, someone with Long Haul Covid-19 has a disability if the individual’s condition or any of its symptoms is a physical or mental impairment that substantially limits one or more major life activities.
The Department of Health and Human Services has issued a statement, “Whether an individual with Long Covid is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.” HHS.gov But see how this is worded, the HHS does not want to state specifically that you have a disability when Covid-19 is not active, i.e., post recovery. Why is this? Because to go further and label individuals who have recovered from Covid-19 as disabled would force businesses, insurance carriers and the federal government to extend money to provide services, insurance and financial aid to many more Americans at enormous economic costs. Simply, I argue it is all about the money.
The Case of the Zika Virus for Comparison Purposes
I am arguing that Covid-19 remains in the body undetected and should be classified as a disability in individuals who have recovered from Covid-19. This is not the first time a situation like this has occurred. One example is the Zika virus and the federal government did in fact label the Zika virus a disability under their so called EEOC Guidance.
According to the EEOC, “the [Zika] virus is transmitted to people primarily through an infected Aedes species mosquito. Mosquitoes become infected when they bite a person already infected with the virus… The virus can also spread through sexual contact and from a pregnant woman to her fetus during pregnancy or around the time of birth. Many people infected with Zika virus experience no symptoms or only mild symptoms. People rarely die from Zika… Zika can cause significant complications, including a congenital condition called ‘microcephaly’ in fetuses and infants, when contracted during pregnancy.”
The following statement will give you pause when you compare it to the current ongoing Covid-19 pandemic and the post recovery status of many Americans. The EEOC said the following about Zika that should equally apply to individuals who have recovered from Covid-19, but the EEOC refuses to go further, most likely because of the enormous financial impact on businesses, insurance carriers and the federal government,
“An impairment does not have to prevent or severely or significantly restrict performance of a major life activity in order to be considered substantially limited in performing activities such as caring for self, or if major bodily functions, like immune system functions, are affected.”
Likewise, a person who has recovered from the Covid-19 virus can be disabled because they are still substantially limited in a major bodily function such as the immune system, even if the person has no symptoms. We do not know if the Covid-19 virus is adversely impacting the immune system of individuals who have recovered from the virus, as the virus is lying dormant undetected within the immune system and other body systems.
The following study published in the journal Nature.com in 2022 provides very alarming evidence that supports the dormancy theory and continued body system consequences that would support the conclusion that many who have recovered from Covid-19 still have a physical disability that should be protected under federal law.
The study findings stated in part,
“In this study of 5,819, 264 people, including 443,588 people with a first infection, 40,947 people who had reinfection and 5,334,729 noninfected controls, we showed that compared to people with no reinfection, people who had reinfection exhibited increased risks of all-cause mortality [death from all causes of death], hospitalization and several prespecified outcomes. The risks were evident in those who were unvaccinated and had one vaccination or two or more vaccinations before reinfection… Altogether, the findings show that reinfection further increases risks of all-cause mortality and adverse health outcomes in both the acute and postacute phases of reinfection. The findings highlight the clinical consequences of reinfection and emphasize the importance of preventing reinfection by SARS-CoV-2.”
The study also stated,
“Furthermore, impaired health as a consequence of the first infection might result in increased risk of adverse health consequences upon reinfection. Our results expand this evidence base and show that in people who get reinfected, reinfection (compared no infection) further increases risk in both the acute and postacute phases and that this was evident even among fully vaccinated people, suggesting that even combined (a hybrid of) natural immunity (from previous infection) and vaccine-induced immunity does not abrogate the risk of adverse health effects after reinfection.”
The study concluded with the following.
“In sum, in this study of 5,819,264 individuals, we provide evidence that reinfection contributes to additional health risks beyond those incurred in the first infection including all-cause mortality, hospitalization and sequelae (consequences) in a broad array of organ systems. The risks were evident in the acute and postacute phases of reinfection. The evidence suggests that for people who already had a first infection, prevention of the second infection may protect from additional health risks. Prevention of infection and reinfection with SARS-CoV-2 should continue to be the goal of public health policy.”
In conclusion, anyone who has recovered from Covid-19 should be considered disabled under the various federal laws. We should not have to wait for reinfection to explain the myriad medical complications that may already by negatively impacting millions of Americans. Without the proper labeling of post Covid-19 recovery as a disability, many Americans risk denial of medical, legal and financial coverage associated with the initial Covid-19 infection. We are in a current state of denial and chaos created to benefit those entities and organizations who would otherwise pay out of pocket. The current system is rigged against the American public, and no one has noticed.
If you would like more information about this article, please contact our employment attorneys at Carey & Associates, P.C. by calling 203-255-4150. Mark Carey is the Managing Partner and career employment attorney.