How helpful is federal guidance for COVID long haulers?

Weeks and months after getting a COVID-19 infection, many survivors continue to experience disabling symptoms that limit or prevent them from engaging in major life activities, including resuming work.

This condition is known as "long COVID" and can happen to anyone infected with the virus, even if the initial illness was mild. Many COVID "long haulers" report experiencing varied debilitating symptoms, from heart palpitations and difficulty breathing to abnormal sleep patterns and difficulty thinking and concentrating.

On July 26, the Office for Civil Rights of the Department of Health and Human Services formally acknowledged this devastating post-COVID condition. Though the HHS and the Biden administration indicated that long COVID can be considered a disability under certain federal laws, this does not mean COVID-related disability individual or group claims will instantly be approved -- especially if an employee files an incomplete claim -- or worse, a fatal claim mistake.

Let's discuss what long COVID claimants need to know before they file for short- or long-term disability benefits with their employer or through private insurance plans.

Understanding the Symptoms and Data

Long COVID symptoms are impacting patients' mental and physical health. Some of the most common types of physical and mental challenges include:

• Long-term pulmonary issues, such as shortness of breath and decreased lung capacity,

• Neurological and psychiatric symptoms, such as sleep problems, headaches, depression, post-traumatic stress, and anxiety and depression.

• Cardiovascular issues, like heart palpitations and enlarged heart.

• Post-viral fatigue, which is different from just getting tired. In addition to total exhaustion, people with post-viral fatigue feel generally unwell. The trigger for post-viral fatigue seems to be a reaction to the virus itself and the symptoms are very similar, or identical, to those of people with chronic fatigue syndrome/myalgic encephalomyelitis.

This is just a partial symptom list and one that is expected to grow as time goes by and more data is reported. Some people also have experienced damage to their muscles, joints, skin and organs like kidneys and the brain.

Surveys cited by the U.S. Centers for Disease Control and Prevention in 2021 found that:

• 35 to 54% of people with mild acute COVID-19 had persistent long-COVID-19 symptoms after two to four months.

• 50 to 76% of people reported new symptoms they had not experienced during the acute illness, and some had reappearance of symptoms that had previously resolved.

• 9% described their long-term symptoms as severe.

This data highlights that surviving a COVID infection does not mean the suffering is over and also that these symptoms can have long-term effects on a worker's ability to perform their work responsibilities with consistency and reliability.

So Is Long COVID Considered a Disability Under the Americans with Disabilities Act?

The Biden administration indicated it may recognize long COVID symptoms as a disability under ADA Sections 504 and 1557. This means that to qualify as a disability, there must be:

• A physical impairment or mental impairment; and

• Those impairments substantially limit one or more major life activities.

The guidance also says that an 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 could mean visiting another physician referred by the insurance provider to demonstrate and confirm the long COVID symptoms and how it would impact an employee's ability to do their occupation with reasonable continuity.

If an employee's long COVID symptoms are recognized as disabilities under civil rights laws, it should certainly help their individual or group claim if they were previously denied or are in the appeal stage. A judge may view those denials as "wrongful," or arbitrary and capricious.

How to Support a Long-Haul Disability Insurance Claim

The best way to support a COVID-related disability claim is to start with proof of the infection. Employees who contracted COVID should have presented the doctor's assessment to their employer during infection so that accommodations could have been made, if possible.

Even with the support of the new federal guidance, the challenge for employees will be proving that the original COVID-19 infection prevents them from working. Whether someone has a disability plan through their job or their own individual insurance, further documentation of the weeks or months of lingering debilitating symptoms will be needed in order to have a chance of acceptance and payment.

Long COVID disability claims can also be supported by:

• Doctor's notes, tests, medications and different treatment attempts.

• Medical visit receipts and patient charts, records and objective testing.

• Written or video documentation of the disabling limitations preventing work.

• A calendar of missed days of work.

Even if an employer has made accommodations for remote work capability, an employee struggling to breathe may still not be able to fulfill his or her duties at the necessary employment physical and/or mental demand levels. The ADA has been put to the test amid the pandemic, but ultimately should ensure job protection in these scenarios. In theory that is where employer-sponsored disability plans should factor into the equation to provide financial support, but it does not always happen that way.

Long COVID Disability Insurance Claims Strategies

The new federal guidance has the potential to allow for more disability COVID claim approvals. Workers who were previously denied short- or long-term disability benefits citing long COVID symptoms may use the new federal guidelines as a platform for their initial claim or for their administrative appeal, or later in litigation.

Remember, appealing a wrongful denial is not something a disabled employee should try to do on their own; aside from its general difficulty, it is also the last chance to successfully build your administrative record to claim monthly disability benefit payments. Attempting to navigate the appeals process amid changing legal landscapes can be detrimental to the claim if you try to do it yourself. That is why hiring a disability insurance lawyer who solely handles Employee Retirement Income Security Act and individual disability claims is the best strategy for securing an approved claim or a successful appeal.