By Leslie Francis and Michael Ashley Stein
Like plaintiffs with other conditions lacking definitive physiological markers, long COVID plaintiffs seeking disability anti-discrimination law protections have confronted courts suspicious of their reports of symptoms and insistent on medical evidence in order for them to qualify as “disabled” and entitled to statutory protection.
We call this “physical reductionism” in disability determinations. Such physical reductionism is misguided for many reasons, including its failure to understand disability socially.
Ironically, these problems for plaintiffs may be traced to amendments to the Americans with Disabilities Act (ADA) that were intended to expand coverage for plaintiffs claiming disability discrimination. Three provisions of the Americans with Disabilities Act Amendments Act (ADAAA) are appearing especially problematic for long COVID patients in the courts.
First, to encourage expanded interpretation of disability, the ADAAA provided example lists of major life activities, including both as to what people do, and how their bodies function, 42 U.S.C. § 12102(2). This list of body functions as major life activities has encouraged some courts to look for physiological evidence to support any claim of a substantial limitation a major life activity.
However, little is known about long COVID, or, in medicalese, “Post-Acute Sequelae of SARS-CoV-2 infection (PASC),” beyond the fact that it can express a complex range of symptoms including fatigue, “brain fog,” sleep disorders, shortness of breath, gastrointestinal symptoms, anxiety and depression. Although research is being funded, results are unlikely for some time.
Because long COVID lacks definitive physiological diagnostic criteria, patients may not have the evidence required to show that they are actually disabled because they are substantially limited in a major life activity.
Second, as a compromise with employers, the ADAAA provided that plaintiffs who could only claim that they have been “regarded as” disabled — rather than actually, functionally disabled — cannot claim a right to accommodations, 42 U.S.C.§ 12201(h). Long COVID patients who fail to qualify as actually disabled thus find themselves ineligible for the provision of reasonable accommodations to mitigate their conditions.
Finally, a third gap may emerge that prevents employees from even qualifying for protection by claiming that their employers regarded them as disabled. In response to the concern that plaintiffs with transitory illnesses such as the flu might claim that their employers regarded them as disabled, the ADAAA limited these protections to conditions that are not “transitory and minor,” 42 U.S.C. § 12102(3). An employee who has COVID and apparently recovers, employers say, cannot be regarded as disabled because their condition was transitory and minor. But an employee whose symptoms linger, or reappear, may not be able to show that their condition will last longer than six months. These as-yet-unclear long COVID employees may not receive ADA protections, such as protection from wrongful termination.
In an article forthcoming in the Chicago Legal Forum, we trace how these three provisions of the ADAAA have disadvantaged plaintiffs claiming COVID infection as a disability when facing courts insisting on physical reductionism in diagnoses. We also show how these trends are beginning to appear in the law regarding COVID. Here are just a few illustrations.
A district court in the Tenth Circuit granted summary judgment to an employer whose employee claimed to have been discharged because of exposure to her father’s COVID-19. The employee claimed associational discrimination based on her father’s illness, but the court concluded that his acute COVID could not be a disability because, even though her father had died, his infection was “transitory” because death had come within 15 days. If such COVID cases could qualify as a disability, this court said, the scope of the ADA would extend to anyone “sick for just a few days,” Baum v. Dunmire Property Management (D. Colo. March 25, 2022).
A district court in the Second Circuit also granted a motion to dismiss when the plaintiff pled as a disability his chronic kidney disease coupled with a COVID infection, citing conflicting evidence about whether he had lingering problems with taste and smell, Earl v. Good Samaritan Hospital of Suffern (S.D.N.Y. Sept. 28, 2021).
Or take a terminated employee bringing suit within the jurisdiction of the Fifth Circuit who claimed that she had been refused the accommodation of temporary leave due to COVID. She survived a motion to dismiss on actual disability because she tested positive for several weeks and had “severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes, all of which she alleges were caused by COVID-19,” Champion v. Mannington Mills, Inc., 538 F.Supp.3d 1344 (M.D. Ga. 2021). This court distinguished cases in which plaintiffs had described their symptoms less specifically — and in which the court had observed that if COVID infection itself is a disability, “employers across the nation will be shocked to learn that if any of their employees are sick for just a few days, then those employees are ‘disabled’ and now protected by the ADA.”
In the Third Circuit, one district court concluded that a plaintiff who had COVID and was sufficiently recovered for his physician to permit him to leave quarantine, but who continued to be treated for COVID-related symptoms could qualify under both the actual (severe infection) and regarded as (continuing treatment that might last six months) prongs of the definition of disability, Burbach v. Arconic Corporation (W.D. Pa. Sept. 22, 2021). Nevertheless, a different district court in that same circuit dismissed a complaint of discrimination based on both actual and regarded as disability brought by a plaintiff who had been discharged for failing to return to work during his quarantine period for COVID. This court reasoned that he had not brought evidence of the severity or length of his disease, or evidence that his employer regarded him as disabled, Payne v. Woods Services, Inc., 520 F.Supp.3d 670 (E.D. Pa. 2021).
Other employees have encountered difficulties claiming that, because of their underlying health conditions, COVID places them at increased risk. For example, one district court held that a plaintiff’s smoking and history of pneumonia were insufficient for disability warranting COVID accommodations, Frederick v. Allor Manufacturing, Inc. (E.D. Mich. Feb. 28, 2022) This court distinguished a decision in which the plaintiff’s underlying cardiovascular system impairments — inoperable aortic valve disease, systolic heart failure, and a pacemaker — placed him at increased risk, explaining that the other court had considered the “totality of an individual’s ‘health circumstances in conjunction with their social circumstances’” in determining whether COVID risk could constitute actual disability. Here, the court’s physical reductionism is patent: it emphasized the patient’s medical condition and ignored social circumstances, despite claiming to consider both.
COVID risk is not, however, just a matter of the severity of the employee’s infection or underlying health conditions. COVID risk varies with social circumstances: the strains of the virus in circulation, the infection rate and vaccination rate in the local community, and the conditions in which employees perform their jobs, to take just a few of the most important. These conditions are not medical, and will not be captured by medical facts about the employee’s condition, especially when courts employ physical reductionism.
Estimates are that 15% to 80% of patients who have undergone even mild cases of COVID experience a range of new, reappearing, or exacerbated health problems. If courts mistakenly take a physical reductionist approach to long COVID, only those individuals who possess biomarkers corroborating the diagnosis will be accorded protected status as individuals with disabilities under federal anti-discrimination law, in contravention of the ADAAA’s intention to be more inclusive of conditions rising to a level of coverage. In some early cases, the judicial response to understanding the relationship of long COVID to the ADAAA’s disability classification has utilized a medical model of disability as expressed through physical reductionism.
Pathologizing disability as a biological impairment that can be verified only though a diagnosis established by agreed-upon biomarkers, rather than the experiences of those with long COVID, instantiates disability as an inherently fixed, objectively and uniformly quantifiable phenomenon. Instead, we urge litigants and judges to implement a level of social cognition regarding the existence and implications of long COVID, both as a disabling phenomenon and as an ordinarily recognized form of disability.
Leslie P. Francis, Ph.D., J.D., holds joint appointments as Alfred C. Emery professor of law and professor of philosophy, and adjunct appointments in Family and Preventive Medicine (in the Division of Public Health), Internal Medicine (in the Division of Medical Ethics), and Political Science, at the University of Utah.
Michael Ashley Stein, Ph.D., J.D., is the co-founder and Executive Director of the Harvard Law School Project on Disability, and a Visiting Professor at Harvard Law School since 2005.