covid-long-haulers-deserve-the-ada’s-reasonable-accommodations-to-return-to-work

The wide range and unquestionable severity of long-term effects for a subset of Covid-19 patients is already well-supported by a number of studies. They experience often unpredictable combinations of symptoms, including chest pain, intermittent fevers, gastrointestinal problems, high blood pressure, depression, anxiety, memory and attention problems, low energy and more.

It’s still unclear exactly how many people who have been infected by the coronavirus will develop long-lasting symptoms, but the number appears substantial. An immunologist at London’s Imperial College told Scientific American in December that his “guesstimate is that we probably have way more than 5 million people on the planet with long Covid.” And as daily global cases remain well over 500,000, even with massive vaccination drives underway, it’s likely that a nontrivial fraction of total patients — some have estimated 2 percent — will develop long-term symptoms.

A long-time employee of self-help guru Tony Robbins’ company, Debbie Kosta, is among them.

After contracting the coronavirus in April 2020, she spent weeks in a medically induced coma, emerging from the hospital with such serious lingering symptoms that she struggled to walk or hold a cellphone. Previously one of Robbins’ company’s most dynamic sales reps, her future at work was now profoundly uncertain.

As evidence about the severity and duration of symptoms that many Covid-19 patients experience continues to mount, questions of reasonable accommodation will confront a substantial number of workers and employers across America.

But she wanted to stay, so she asked for additional time to recover as well as the option to work from home. Both requests were denied by her employer, who instead offered her a severance payment and encouraged her to go on disability, a process that isn’t as simple as it sounds. To qualify for disability would involve a long and onerous process that could take years with little prospect of success, all while consigning her to joblessness with very little money to survive on. (This was the point at which she sought legal counsel, and employment attorneys at our law firm began considering her case; we now represent her.)

Finally, in December — when surging Covid-19 cases across America were setting grim new records — she filed a lawsuit against her former employer. At issue was a basic question: Had the company denied her “reasonable accommodations” — the legal requirement outlined in the seminal 1990 Americans With Disability Act — for her long-haul Covid-19 symptoms?

Her lawsuit is still underway in the courts (and Robbins’ spokeswoman denied to the New York Times in December that Robbins had done anything wrong), but, as evidence about the severity and duration of symptoms that many Covid-19 patients experience continues to mount, variations of this question will confront a substantial number of workers and employers across America in the coming months and years. How we answer them will have decisive economic, moral and medical consequences.

The ADA does not offer an exhaustive list of qualifying disabilities; instead it defines an individual with a disability as someone who has “a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment.” The vagueness of this phrasing is actually a virtue, because it leaves a necessary latitude for discretion and focuses on the level of functional impairment that a given condition creates.

As the pandemic has demonstrated, new pathogens and illnesses can arise quite suddenly, and some of them produce debilitating and long-lasting consequences. Any finite list of qualifying disabilities built into the act would have long ago been seen as incomplete.

Offering reasonable accommodations to workers struggling to recover from Covid-19 not only shows understanding and humanity, it also helps the economy.

Plus, deciding what constitutes a reasonable accommodation for an employee — like the question of what defines a disability — requires a nuanced consideration of the details of their work. Allowing a flexible work schedule, changing or improving the physical accessibility of the workspace, reorganizing and reassigning duties and sometimes allowing service animals at work are all generally recognized as reasonable accommodations.

But the growing trend toward remote work — which many predict will be a permanent shift post-pandemic — may shift our very concept of what is reasonable by making the ability to work flexible hours from home a given to which additional accommodations are added, rather than a significant accommodation in itself.

All of this presents employers of all sizes across America with a vital opportunity: Offering reasonable accommodations to workers struggling to recover from Covid-19 not only shows understanding and humanity at a moment of great national suffering, it also helps the economy regain its previous strength and health.

Still, it took both private employers and public agencies far too long to recognize that Lyme disease — which medical professionals increasingly admit resembles Covid-19 in the variety and complexity of its manifestations — can be a genuinely debilitating ailment. And, sadly, there are already influential media organizations trying to dismiss the severity of long-term Covid-19 symptoms and situate the issue within America’s ever-broadening culture wars. This is a mistake.

While the medical evidence must be decided on scientific grounds, it’s insulting to suggest that thousands of people are simply lying about their symptoms as a bid to win unemployment or even more difficult to obtain disability benefits. There’s a clear legal and ethical imperative to take seriously the suffering of those waging these grueling long-term battles with the coronavirus. That means helping them get back to work in whatever ways make the most sense, given their particular jobs and their particular symptoms.

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