Legal Protection for Wisconsin COVID “Long Haulers” Unclear Under Workplace Laws

10% of COVID Patients Develop Long-Term Symptoms

COVID 19 has infected more than 30 million Americans and over 649,000 Wisconsinites in just over a year. Approximately 10% of those people will recover from the initial COVID symptoms, only to experience fatigue, shortness of breath, joint pain, brain fog and/or serious neurological problems for weeks or months, sometimes on an intermittent basis.  Medical providers call those COVID 19 survivors “COVID long haulers.”

COVID Long Haulers Face Difficult Symptoms and Unclear Medical Futures

Some medical professionals see similarities to sufferers of Lyme’s disease and chronic fatigue syndrome. Because COVID 19 is a new virus, medical providers cannot know the long-term course of recovery for COVID long haulers. This uncertainty complicates employment prospects for long haulers who want to return to work, and for their employers trying to navigate their needs.

COVID long haulers face difficulties in their workplaces because the length and nature of their recovery is unknown, given the novelty of the virus and the absence of related medical research. Although state and federal Family Medical Leave Acts (FMLA) and short-term disability benefits programs can help provide workers financial assistance, these workplace protections may be insufficient to meet the needs of COVID long haulers because of the unpredictable and potentially long-term nature of their symptoms.  Once FMLA leaves and/or short term disability benefits are exhausted, COVID long haulers may need more time to recover, and thus longer and/or episodic leaves of absences from work.

How Existing Leave Laws Fail to Meet Challenges Faced by COVID Long Haulers

State and federal employment laws balance two often competing workplace factors:

  • providing employees time to heal and recover from medical challenges so they can return to their jobs
  • recognizing an employer’s need for people to do the work in their workplace

In the last year, new state and federal statutes have attempted to address the short-term financial needs of employees adversely affected by COVID 19. FMLA leave laws generally provide unpaid leaves, protection to return to one’s job, and preservation of medical insurance benefits, generally for 12 weeks. Short and long term disability insurance plans can provide financial support while employees recover, or if the employee can no longer perform their job duties.

When leaves and insurance plans do not meet their needs, employees have long needed to financially support themselves while recovering from illness or accident. These challenges are increased for COVID long haulers, however, because the unknown recovery period makes it much more difficult for an employee to make a request for an accommodation that an employer could grant, or for an employer to  plan around what work the employee will be able to do. With tens of thousands of people affected as COVID long haulers in Wisconsin alone – let alone the U.S. at large – a comprehensive solution is imperative.

The Americans With Disabilities Act (the ADA), and state law equivalents, require employers to make “reasonable accommodations” to “a qualified individual with a disability” who can perform the “essential functions” of his or her job “with or without reasonable accommodations.” Employees often seek a leave of absence as an accommodation, after the employee exhausts their FMLA or short term disability coverage. Because the ADA does not define what length of leave is “reasonable,” however, courts will review the reasonableness of an employer’s decision to reject a leave request, if challenged by an employee.

Employment Leave – What Length is “Reasonable” Under the ADA? 

The Seventh Circuit Court of Appeals (Seventh Circuit) has consistently rejected ADA leaves of more than a few weeks, saying the ADA is an anti-discrimination statute, not a medical-leave entitlement statute.  Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017)  In the same case, the Seventh Circuit said “[l]ong term medical leave is the domain of the FMLA…In contrast, ‘the ADA applies only to those who can do their job.’”, citing Byrne v. Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003).

The Seventh Circuit‘s aversion to extended leaves under the ADA is a particularly harsh interpretation for COVID long haulers, who may need more weeks of leave than FMLA provides. Unfortunately, COVID long haulers who exhaust FMLA leave and/or short term disability benefits, and whose employers deny their requests for an additional leave, may have the following choices:

  • Be unemployed while they recover from the effects of COVID
  • Sue their employer under the ADA for failure to grant a “reasonable accommodation”
  • Seek long term disability benefits through a private or employer-provided insurance policy, or apply for disability benefits from the Social Security Administration

What Could Wisconsin and Federal Legislators Do? 

State and federal legislators could bridge the gap in workplace protections for COVID-19 long haulers by adopting legislation that follows suggestions made by the Equal Employment Opportunity Commission (EEOC). The EEOC suggests defining leaves of absence as a “reasonable accommodation” if the leave is:

  • of a definite, time-limited duration;
  • requested in advance; and
  • is likely to enable the employee to perform the essential job functions when he or she returns to work

The EEOC’s goal is enabling the employee to do his or her job when he or she can return to work, even if that time exceeds a few weeks.

Abundance of COVID Long Haulers May Spur Legislators and Soften Court Stance on Extended Leave

We hope the sheer number of COVID long haulers will sharpen focus on the long-standing challenges employees with long-term medical conditions experience, and motivate legislators to give clearer guidance to employers and the courts. Alternatively, new eligibility rules for short and long term disability benefits, or benefits programs aimed particularly at helping COVID long haulers, may emerge.

We Help COVID-19 Long Haulers Consider Their Options and Secure Benefits

The employment attorneys at Hawks Quindel can assist COVID long haulers who:

  • are not covered by, or have exhausted, their FMLA and short term disability benefits, and are considering their options
  • have had difficulty qualifying for a long term disability insurance policy or benefits from the Social Security Administration

If you are in the above situations, contact an employment lawyer to discuss your options.

 

Katherine Charlton
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