Loeb Employment & Labor partner Ian Carleton Schaefer spoke with Law360 about the growing recognition that COVID-19 leaves some people with long-term symptoms, which adds another layer of challenges for employers, whether federal regulators ultimately decide the virus qualifies as a disability or not.
Those "post-COVID conditions," which can last at least for months even in people who had only mild cases of COVID-19, may include fatigue, brain fog, regular headaches, heart palpitations, mood swings and lightheadedness. For people who had severe cases of COVID-19, long-term symptoms may include autoimmune conditions that can damage healthy organs, according to the CDC, which notes that research is still being conducted to better understand long-term, post-COVID-19 medical conditions.
"This is a significant issue … because when we look at the numbers of long-haulers and the expected costs, they are going to be significant," Schaefer said, who noted that data suggests anywhere from 10 percent to 30 percent of the tens of millions of Americans to contract COVID-19 are long-haulers.
"I think the first point is really one of awareness that this is going to affect every single employer and there's going to be what I perceive as an inevitable and huge crush of not only ADA claims for accommodations and the like, ... but also short-term disability [and] long-term disability. And that's going to overwhelm the system that exists from a cost perspective," Schaefer noted.
Schaefer also told Law360 that companies should be ready for a wave of intermittent leave requests long-haul COVID-19 conditions. This type of leave is historically “one of the most challenging types of leave, to administer and to manage, because it's so disruptive to a workplace," he said.
Schaefer suggested employers "sort of double down and revisit what the existing practices are when people make requests for intermittent leave," which he noted is both "permissible and very common" in the context of both the ADA and the Family and Medical Leave Act.
When an employee is going to and from medical treatments or otherwise has inconsistent work schedules, it "often leads to frustration on the part of employers and how to manage" it and also opens the door to retaliation against those who may be entitled to intermittent leave under the ADA or the FMLA, Schaefer said.
Schaefer also noted there could be scenarios in which a person is entitled to intermittent leave under one law but not the other, saying employers "can't forget about the interplay" between the ADA and different statutes that allow for leave, like the FMLA and various state paid sick leave laws.
"It will require a lot of thoughtful navigation around [the question] of, 'Is someone entitled to leave?' and 'Is leave paid?' and 'How [do leaves] interact with one another?'" Schaefer said. "These aren't necessarily new concepts traditionally. It's just the application of them in dealing with this new paradigm [that] I think, is going to be really tricky."Click here to read the article on Law360’s website (subscription required).