"Long-COVID," Bodily Systems as ADAAA Major Life Activities, and the Social Model of Disability

COVID-19 has brought with it an unwelcome accompaniment: “long COVID.” Long COVID is a complex range of symptoms experienced by some patients after even very mild COVID-19 infections.11

Difficult to diagnose, long COVID already has resulted in claims of disability-related employment discrimination. Some plaintiffs have prevailed in their claims while others appear to have failed. This article addresses a potentially problematic contribution to these failures: a misalignment between how some courts understand actual disability for purposes of disability anti-discrimination law and how long COVID is medically diagnosed. Without physiologically observed biomarkers of long COVID that can be used to confirm the diagnosis, some disability claimants have not been considered sufficiently disabled to warrant disability rights protection.22 We call this the physical reductionism of disability determinations. Such physical reductionism, we contend, misunderstands the relationship between disability, bodily function, and disability anti-discrimination law.

Our argument can be summarized as follows. Part II describes how many medical conditions have ambiguous or contested diagnoses but nevertheless could be recognized as disabilities and thus protected under anti-discrimination law. These are conditions for which diagnosis is based on a range of reported symptoms but without confirming biomarkers and in the absence of definitive alternative diagnoses. In other words, no definitive physiological tests such as biopsies identify the condition, although physiological tests may be used to rule out conditions by enabling a different diagnosis. Conditions such as fibromyalgia, chronic fatigue syndrome, depression, post-traumatic stress disorder (PTSD), post-concussive syndrome (PCS)33

or adult attention-deficit/hyperactivity disorder (ADHD) are all ambiguous diagnoses in this sense. Long COVID is also appearing as a condition that is ambiguously diagnosed. Part III presents one provision of the Americans with Disabilities Amendments Act of 2008 (ADAAA),44 the inclusion of bodily system function as a major life activity, that has contributed to problematic physical reductionism in disability determinations. Although the ADAAA was intended to extend the range of people considered to be disabled for purposes of disability anti-discrimination law, ironically and unintentionally, the provision seems to have instead encouraged physical reductionism in disability determinations. In Part IV, we describe how this reductionism has functioned in the case law when plaintiffs contend they are disabled because of a substantial limit in the function of a bodily system. Part V documents initial signs of such reductionism in the treatment of long COVID in federal agency documents. Part VI reveals reductionism in the limited initial case law regarding COVID and long COVID. We conclude by suggesting how social understandings of the body and disability, congruent with the ADAAA, ought to counter misleading reductionism about ambiguously diagnosed conditions as disabilities, including long COVID.

An important caution to this discussion is that knowledge about and experiences with long COVID are just in their initial stages and are continuing to evolve and change. In February 2021, the National Institutes of Health (NIH) announced the contours of a $1.5 billion effort to study the long-term effects of COVID-19 infection.55

The initial NIH listening session for this “Researching COVID to Enhance Recovery” (RECOVER) initiative described plans to establish a diverse patient cohort to understand the symptoms and any possible biological underpinnings of long COVID.66 Much is still to be learned about long COVID, its diagnosis, and its course; these uncertainties must be kept in mind as claims of disability discrimination based on long COVID appear.

This Part begins with an account of ambiguous diagnoses. It gives brief descriptions of conditions with ambiguous diagnoses such as fibromyalgia or PTSD. We then explain what was known at the outset of 2022 about long COVID and whether it is a condition with an ambiguous diagnosis.

Ambiguous diagnoses rely on reported or observed symptoms rather than on laboratory-confirmed measures such as serum creatinine, a measure of renal function.77

For conditions with ambiguous diagnoses, there are no definitive physiological measures such as would be obtained by a blood test or a biopsy. These diagnoses may involve a constellation of symptoms, some but not all of which must be present for the diagnosis to be made. There also may be changes in the symptoms that are regarded as components of the diagnosis. Diagnoses for such conditions may be based on ruling out other possible causes for the patient’s symptoms, and they are likely to be contested.88 For conditions with ambiguous diagnoses, physical reductionism—the insistence on physiological measures for diagnosis—is likely to result in misdiagnosis or the failure to diagnose at all. Patients may be told that they are just imagining their symptoms or be given an erroneous mental health diagnosis such as depression.

Examples of conditions with ambiguous diagnoses include fibromyalgia, chronic fatigue syndrome, depression, PTSD, PCS, and ADHD. For example, a diagnosis of fibromyalgia may be based on multiple points of pain throughout the body, fatigue, poor sleep, and mood problems.99

Chronic fatigue syndrome diagnoses may be based on debilitating and unrelieved fatigue lasting longer than six months, together with symptoms such as impaired memory or new headaches.1010 Even the recommended name for this condition has been changing, from chronic fatigue syndrome to the medical-sounding “myalgic encephalomyelitis” (my meaning muscle, algic meaning pain, encephalo meaning brain, myel meaning spinal court and brain stem, and itis meaning inflammation)1111 to “systemic exertion intolerance disease.”1212 Criteria for PTSD diagnoses have likewise shifted over time.1313 To take another condition, ADHD is described by the Mayo Clinic as including “a combination of persistent problems” including difficulty paying attention and impulsive behavior.1414

For conditions with ambiguous diagnoses, patients frequently report long struggles to have their conditions recognized or identified. They describe encounters with health care providers who try to convince them that their conditions are largely unreal or due to anxiety or stress.1515

Patient reports of symptoms, moreover, may be discounted, misunderstood, or regarded as imagined—a phenomena recently referred to as medical gaslighting.1616 Women especially report these experiences of mal-response. The possibility of epistemic injustice in provider-patient encounters is increasingly recognized.1717 For example, testimonial injustice occurs when patients’ statements are not believed when they are identified with a disfavored group. Emphasis on evidence-based practices (EBP) may exacerbate the division between patient reports and clinical recognition, as EBP prioritizes knowledge obtained through clinical testing at the cost of devaluing patients’ first-personal stories.1818

Insistence on physiological measures as critical to diagnoses may distort ambiguous diagnoses in two directions. If physiological criteria are thought necessary for diagnosis, people will be judged not to have the condition in the absence of the relevant physiological measures. People claiming that they are disabled by the disorder will thus not be able to claim an actual disability, since they have not been judged to have the disorder.1919

Instead, they at most will be able to claim that they have been “regarded as” disabled, a category that will not entitle them to accommodations under the ADAAA.2020

On the other side, if only physiological criteria are believed sufficient for diagnosis, what it is to have the condition may be thought of primarily in terms of the physiological malfunction, thereby ignoring the experiences of the patient with the malfunction. How the condition affects a major life activity will be understood in terms of the empirically verifiable physiological malfunction, rather than through patients’ interactions with and in the world.2121

The resulting need for accommodation may also be limited to addressing the physiological malfunction rather than other aspects of the patient’s experiences and abilities. We develop these points later in this article.2222

As the COVID-19 pandemic continues in its third year, its aftermath for patients is increasingly apparent. Estimates now are that upwards of 10 percent and perhaps as many as 30 percent of patients who have had even mild cases of COVID will experience a range of new, reappearing, or exacerbated health problems.2323

These health problems may be the aftereffects of a serious illness or ICU stay, such as muscle weakness or post-traumatic stress. They may be the result of tissue damage caused by the COVID-19 inflammation, such as shortness of breath due to lung damage. They may involve the exacerbation of existing illness such as diabetes or heart disease. “Brain fog” and difficulty in concentrating also are frequently reported. In addition, ongoing symptoms such as cough may be the continuation of the COVID-19 infection itself.

As of early 2022, clinical diagnostic criteria for long COVID remained unsettled. Patients report extended times of recovery and multiple symptoms across different organ systems.2424

Typical symptoms include fatigue and cognitive dysfunction. This state of affairs has caused problems for people claiming disability due to long COVID. Insistence on physiological criteria for the diagnosis may impair individuals from qualifying for benefits such as Social Security disability.2525 Matias v. Terrapin House, Inc.2626 and Alvarado v. ValCap Group.,2727 which we discuss further below, exemplify how unsettled diagnostic criteria create barriers to disability rights clams for long COVID by invoking physical reductionism. The next Part of this Article outlines the addition of major bodily system dysfunction to the definition of major life activity in the ADAAA and how this addition may have contributed to physical reductionism in disability determinations.

The ADA, as amended by the ADAAA, prohibits certain forms of discrimination on the basis of disability in order to ensure that people with disabilities are not diminished in the “right to fully participate in all aspects of society.”2828

The ADAAA was enacted in 2008 to counter a series of Supreme Court decisions that had radically reduced the ADA’s coverage.2929 The Court had constricted the scope to people who, even with medical treatment, faced profound inabilities to engage in basic activities of daily living. Etta Williams, for example, found that her carpal tunnel syndrome could not qualify her as disabled despite her inability to perform a range of manual tasks, including those related to her employment assembling automobiles.3030 Instead, she would have “to a large degree” be unable to perform “activities that are of central importance to daily life.”3131

In responding to Williams and other decisions3232

sharply curtailing the ADA’s intended understanding of disability, Congress did not change the statutory definition of disability itself. That definition remained three-pronged. To be disabled for purposes of being considered subject to discrimination on the basis of disability, individuals must qualify under one of these three prongs: (1) have a physical or mental impairment that substantially limits one or more life activities, (2) have a record of such an impairment, or (3) be regarded as having such an impairment.3333

Rather than changing this three-pronged disability definition, the ADAAA amendments were designed to affect the definition’s implementation. In the explanation of the ADAAA’s Senate managers, the 2008 amendments were designed to expand the scope of persons who could qualify as disabled while maintaining “the ADA’s inherently functional definition of disability as a physical or mental impairment that substantially limits one or more life activities . . . .”3434

The basic change was interpretive and made overtly as a counter to the prevailing and cramped interpretations of the Supreme Court and federal courts. The ADAAA thus stated specifically that the definition of disability was to be construed “in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of this chapter.”3535

This rule of construction applies to all three prongs of the disability definition: actual disability, record of a disability, and regarded as disabled.3636

There are three elements to actual disability, and the rule of construction applied to each of these: a “physical or mental impairment” that “substantially limits” a “major life activity.” In the ADAAA, the understanding of “major life activities” was further expanded with two lists. The subsection (A) list of major life activities was made up of daily doings that “include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”3737 The Senate managers described this “illustrative list” as included for clarity and by no means comprehensive.3838 The subsection (B) list consisted of “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”3939 This addition was made for “better addressing chronic impairments that can be substantially limiting.”4040

Importantly for the points we make in what follows about physical reductionism, the subsection (A) list describes many activities that people do while interacting with the world: ambulating in their environment, picking things up, becoming educated, communicating what they are thinking, or performing their jobs. The subsection (B) list describes physiological processes and invites medical evidence about them. The introduction of these two separate lists foreshadows at least two potential problems for the understanding of what plaintiffs claiming actual disability must show. First, a list of bodily processes suggests the need for medical evidence in proof of disability. Second, there is a risk that the addition of the (B) list will be taken to suggest a central role for physiological measures in the determination of a major life activities on the (A) list. Both problems may confront plaintiffs claiming disability based on conditions with ambiguous diagnoses, as we detail in the next Part.

Two other final changes of great importance enacted in the ADAAA addressed the third, “regarded as,” prong of the definition of disability. First, individuals cannot qualify as regarded as disabled for transitory and minor impairments lasting six months or less.4141

Hence, people with COVID that resolves quickly will not qualify as disabled under this prong, but people with long COVID might so qualify. The ADAAA Senate managers explained this temporal provision as being important to employers and as “reasonable” because “individuals seeking coverage under this prong need to meet the functional limitation requirement contained in the first two prongs of the definition,” that is, actual disability or a record of disability.4242 Second, people qualifying for statutory protection under the regarded as prong for disability were not entitled to accommodations under the ADAAA.4343 Senate managers explained this provision, which resolved conflicting holdings under the ADA, as “an acceptable compromise” given the “strong expectation that such individuals would now be covered under the first prong of the definition, properly applied.”4444 The reasoning was that with the expanded interpretation of actual disability, people with accommodation needs would be covered. People who were only “regarded as” disabled and treated adversely as a result would not require accommodations, because they would not be actually disabled. This reasoning assumes, however, that people needing accommodations will be able to qualify under the first prong of the disability definition. Yet a gap may remain: if individuals fail to qualify as actually disabled but have conditions that affect their ability to function at work, they may still need accommodations, such as flexible hours, but will be unable to claim rights to them.

Under these statutory provisions, individuals with COVID-19 may be at risk of falling into several coverage gaps. Individuals who experience comparatively mild initial COVID-19 infections will be unable to claim actual disability and associated accommodation rights if they cannot show substantial limitation in a major life activity broadly construed. If they have lingering symptoms, they may need accommodations such as intermittent leave, adjusted job responsibilities, or flexible schedules but will not have a right to them without being able to show actual disability. They might try to turn to a diagnosis of long COVID as a condition that substantially limits a major life activity, but then encounter the difficulties with that diagnosis we have identified. In addition, they may be met with the objection that their condition is “transitory and minor” if it has not yet lasted for six months and its duration remains unclear. If they are unable to qualify as disabled except under the “regarded-as” prong, they will not receive accommodation rights. A further gap may emerge for an employee who can only show that her employer believed she had COVID but who cannot show that her employer believed she had long COVID; this employee may not be able to qualify under the “regarded-as” prong if her COVID is transitory and minor. She thus might not be protected by the ADA if her employer fires her or otherwise treats her adversely based on beliefs about her COVID diagnosis.

Plaintiffs bringing claims of employment discrimination under the ADA must start with a prima facie case. Elements of the prima facie case include (1) that the plaintiff meets one of the three prongs of the definition of disability, (2) that the plaintiff was treated adversely by the employer, and (3) that the plaintiff was qualified for the position in question. Courts have varied in the showing they require of plaintiffs to survive a motion to dismiss or a motion for summary judgment where the issue is whether the plaintiff could qualify as actually disabled and thus seek accommodations. This Part explains how some post-ADAAA courts insist on detailed factual explanations of how a person’s major life activity is substantially limited by the claimed impairment. Some courts even require medical evidence of the impact of the plaintiff’s impairment on the major life activity claimed to be limited. These courts have tended towards the physical reductionism we identified previously, insisting on specific physiological evidence of bodily dysfunction that is well outside of the norm in order for the plaintiff to qualify as substantially limited in a bodily function that is a major life activity. Such reductionism has appeared in the case law about the interpretation of substantial limits on the subsection (B) list of major bodily functions and in the cases where the claimed impairments involve ambiguous diagnoses.

The regulations implementing the ADA as amended by the ADAAA play a central role in court decisions about when impairments substantially limit a major life activity, so we begin with them before turning directly to the case law. These regulations explain what evidence is needed to establish an actual disability. Although evidence of impairment alone is insufficient,4545

the additional required showings about major life activities and substantial limits are not meant to be demanding, according to the regulations.4646 In so providing, the regulations are implementing the ADAAA requirement that the definition of disability be broadly construed to the maximum permissible extent.4747

Instead of requiring extensive medical evidence of actual disability, the regulations say, “the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity.”4848

For “substantially limit[ing],” the comparison to be drawn is between the individual’s ability to perform the identified activity and the ability of most people in the general population to perform the same activity.4949 This comparison “usually will not require scientific, medical, or statistical analysis.”5050 Based on these principles, according to the regulations, individualized assessments of some physical or mental impairments predictably will, “in virtually all cases,” result in ADA coverage.5151 Subsection (j)(3)(iii) of the regulation then lists examples of impairments that will predictably result in coverage because they substantially limit major bodily functions: intellectual disabilities substantially limit brain function, cancer substantially limits normal cell growth, diabetes substantially limits endocrine function, PTSD substantially limits brain function, and HIV substantially limits immune function, among others.5252 Notably, these major bodily functions are described in physical terms—brains, cells, immune systems or endocrine systems—although no further physical evidence is usually to be required, according to the regulation. As described below, some courts cite these (j)(3)(iii) examples to conclude that plaintiffs have shown enough to survive summary judgment on actual disability when they allege that they have a condition such as cancer or diabetes without more detailed medical evidence. However, other courts insist that medical evidence must be available to bridge the gap between the impairment and the substantial limit on the bodily function if the plaintiff’s case is to continue.5353 Thus, a plaintiff with diabetes would need to bring forth actual medical evidence of the impact of her diabetes on her endocrine function in order to survive a motion to dismiss her claim for her failure to allege actual disability.

The Supreme Court has not decided a case interpreting “major bodily function” as an actual disability. The First, Third, Fourth, Fifth, Sixth, Tenth, and Eleventh Circuits all have directly relevant appellate decisions; these and other circuits also have district court decisions on point. These courts move in different directions about the extent of physical evidence needed to survive motions to dismiss or motions for summary judgment,5454

with the Tenth Circuit and district courts in the Second Circuit applying the most reductionist requirements, even in some cases requiring specific medical evidence. These interpretations of major bodily functions have significant implications for ambiguous diagnoses, especially when courts seek to construct the diagnosis in terms of bodily malfunction.

In the Tenth Circuit, plaintiffs claiming that an impairment substantially limits a major bodily function must provide expert medical testimony of their diagnosis, the causal relationship between the diagnosis and the bodily system malfunction, and an individualized assessment of how the malfunction is substantially limiting.5555

A recent decision involved an ambiguous diagnosis: PTSD. A former special education teacher presented her therapist’s diagnosis of PTSD and her own testimony of how the condition affected her life, including disturbed sleep. The court characterized the (j)(3)(iii) predictive examples as “general” and insufficient to “overcome the need for expert medical evidence” to establish the causal connection between the life activity of sleeping and the substantial limitation associated with her PTSD.5656 The court’s description of the plaintiff’s symptoms as merely “alleged” perhaps also reveals epistemological doubt that, without expert medical testimony, her claims are not to be believed.5757 Another plaintiff had expert medical testimony of her diagnosis of rheumatoid arthritis and the effects of the autoimmune condition on her musculoskeletal system; the court found this testimony insufficient to establish an individualized assessment of her disease’s impact on her bodily systems.5858 Other district court decisions in the Tenth Circuit also look for medical evidence to support a causal connection between the diagnosis and the severity of the claimed effect on the life activity.5959

Although the Second Circuit does not have a relevant appellate decision, district court decisions in that circuit similarly insist on detailed medical showings of the relationship between the claimed impairment and the severity of the functional limitation. Just as a diagnosis of hyperthyroidism and required treatment is insufficient for substantial limitation on endocrine system function,6060

a diagnosis of PTSD has been insufficient for plaintiffs claiming actual disability despite their testimony about their fears or their missing work because of the condition.6161 Evidence of anxiety and a diagnosis of panic disorder was insufficient even though it was severe at times and caused physical symptoms including chest and stomach pain and shortness of breath.6262 By comparison, evidence of three hospitalizations, along with having been picked up lying in the street, sufficed for a plaintiff claiming that his bipolar disorder substantially limited the life activities of brain function, concentrating, and breathing,6363 gross hematuria disease that caused frequent urination was substantially limiting of the major life activity of genitourinary function because it also caused urinary tract bleeding,6464 and allergic reactions to mold that required use of an asthma machine substantially limited the major life activity of breathing.6565 These decisions illustrate how plaintiffs in the Second Circuit are more likely to be successful in their claims of actual disability when they can bring forth medical measures in addition to testimony about physical symptoms related to their diagnosis.

The Sixth Circuit likewise turns to specific physical evidence about the functional impact of a condition, although not all cases require expert medical evidence. For example, one plaintiff had a physician note that she was receiving treatment “aimed at rebalancing [her] thyroid and adrenal glands,” as “present[ing] with extreme fatigue, peripheral neuropathy, thyroid disorder, and decreased mental clarity,” and as having been prescribed Synthroid, a treatment for hypothyroidism.6666

The appellate court disagreed with the trial court’s conclusion that without an explicit diagnosis this evidence was insufficient because plaintiff’s medication treated hypothyroidism, an impairment of endocrine function, and her physician had noted substantial limits in major life activities of concentrating and thinking.6767 However, the plaintiff’s case would have been dismissed without the evidence that she was receiving medication prescribed for the condition.

By contrast, another Sixth Circuit district court recently reasoned that a plaintiff with the ambiguous diagnosis of fibromyalgia had made a sufficient showing for actual disability when she asserted her condition both (1) caused difficulties in exercising, engaging in her favorite hobbies, sleeping, and concentrating, and (2) made her nerve endings unduly sensitive to heat and cold thus impairing neurological function.6868

The physical manifestation of her condition in her nerve endings was particularly impressive to the court. On the other hand, another plaintiff was unable to survive a ruling on actual disability based on her testimony that she had been diagnosed with PTSD, which affected her abilities to work and sleep, without clinical evidence of her diagnosis.6969 Similarly, a recent Sixth Circuit district court decision rejected the sufficiency of a diagnosis of essential tremors as substantially limiting neurological function without a specific showing of how “the diagnosed ‘condition’ . . . also results in some meaningful functional difficulty as compared to the population at large.”7070 These courts seem to want some kind of physiological measure or a showing of actual disability in addition to plaintiffs’ own evidence of what they are unable to do in the world.

Third Circuit decisions have reached more mixed results about whether medical evidence is required when plaintiffs seek to draw the inferences suggested by (j)(3)(iii). One unpublished appellate decision holds that a diagnosis of early-stage breast cancer was insufficient evidence of substantial limitation of the major life activity of cell growth without further individualized evidence of the cancer’s effects on the plaintiff’s cells or other life activities.7171

Other district courts in the circuit have held that plaintiffs’ cases survive when a physician provides evidence that their stroke and seizure affected sleeping and concentrating7272 or when they claim that HIV positivity substantially limits immune system function,7373 but not when they claim a 35 percent loss of function from a finger injury without further medical evidence.7474 A decision regarding the ambiguous diagnosis of fibromyalgia is to similar effect: the plaintiff’s case survived on actual disability when she brought evidence from herself, her husband, and her “voluminous medical records” that her ability to walk, sleep, and perform routine household chores was limited.7575 This conclusion was “bolster[ed]” by evidence that she regularly experienced pain when performing these activities.7676 Another plaintiff claiming severe depression and chronic fatigue survived the defendant’s effort to end the litigation when her records included applications for Family and Medical Leave Act (FMLA) leave for these conditions approved by her employer although the court’s opinion contains no further description of the evidence in her medical records.7777

The Fourth Circuit may also be somewhat less demanding in the medical evidence required of plaintiffs. A plaintiff’s pleading that herniated discs “caused him difficulties” in lifting, running, sleeping, driving, and turning his neck was insufficient until amended to give the medical details that his herniation was at the C7-T1 level and that he had muscle spasms, pain, numbness, and difficulty sleeping.7878

Here, the court required the plaintiff’s description of his poor functioning to be supplemented medically. The case of a plaintiff with the ambiguous diagnosis of major depressive disorder and a diagnosis of colitis survived with evidence of her treatment records and detailed explanations of how she experienced uncontrollable urges to cry and sudden episodes of diarrhea that would result in her soiling herself if she could not reach a bathroom immediately.7979 Another plaintiff succeeded with evidence of his disabilities of ADHD and autism spectrum disorder that included testing for and diagnoses of the conditions, along with a letter from his counselor that he may have difficulty with social interactions and staying on task.8080

The Fifth Circuit has concluded that detailed evidence of diagnoses of PTSD and depression—both ambiguous—together with the plaintiff’s description of trouble forming thoughts and sleeping normally was sufficient to infer actual disability under (j)(3)(iii).8181

This conclusion also relied on the (j)(3)(iii) statement in the regulations that scientific, medical, or statistical evidence should not be necessary to show that some conditions amount to actual disabilities.8282 District courts in the Fifth Circuit have allowed the (j)(3)(iii) inference for plaintiffs arguing that cancer substantially limits the major life activity of normal cell growth,8383 but have referred to physician evidence for a stroke limiting speaking, hearing, and brain and bladder function8484 ; deep vein thrombosis and pulmonary embolism inhibiting sitting and working8585 ; asbestos exposure and tuberculosis limiting breathing and the bodily functions of respiration and circulation8686 ; or diabetes limiting walking.8787

The Seventh, Eighth, and Ninth Circuits have district court decisions that vary in the extent to which they rely on medical evidence. To take some illustrations, medical evidence that Crohn’s disease caused abdominal pain, diarrhea, urgency, and incontinence sufficed to substantially limit digestive and bowel function8888

; and renal cancer limited normal cell growth.8989 Courts found sufficient medical records that a plaintiff had been diagnosed with PTSD and depression and reported sleeping only two hours per night,9090 medical records of hospitalization and treatment for severe depression coupled with constant weeping and suicidal ideation,9191 plaintiff’s reports of her struggles in performing tasks such as laundry with her chronic fatigue syndrome,9292 medical records of a back injury and fibromyalgia,9393 and medical evidence of treatment for depression that affected many facets of work and personal life.9494 However, medical evidence of a stroke was insufficient when the plaintiff’s only ongoing problem was hypertension requiring medication,9595 and plaintiff’s evidence of hospitalization for severe anxiety and bouts of severe anxiety at her job did not suffice.9696

In a decision of the Eleventh Circuit, a primary care physician’s explanation of the retinal damage from diabetes sufficed to show a substantial limitation of the major activity of sight9797

and a physician’s affidavit detailing how degenerative disc disease caused nerve roots to radiate pain also sufficed.9898 In contrast, a physician’s description of residual mild tricuspid regurgitation with shortness of breath while lying down after a heart attack was insufficient when it did not have much effect on the plaintiff’s function or chronically affect her life.9999 And several district court decisions are very favorable to plaintiffs arguing that actual disability should be predicted under the (j)(3)(iii) examples: PTSD is a disability as a matter of law in one case,100100 and intellectual disabilities by definition substantially limit the major life activity of learning in another.101101

To summarize, physical reductionism is by no means uniform in the case law. But it is especially prevalent in some circuits, where the tendency is to insist on medical evidence of functional limitations, or at least to prioritize such information in deciding whether a plaintiff’s case can survive on the very first step of a claim of discrimination based on actual disability. Plaintiffs with ambiguous diagnoses lacking physiological specifics are particularly vulnerable to finding their claims dismissed. Although cases are still very limited, some of these themes are emerging in cases in which plaintiffs claim disability based on either their initial COVID diagnosis or its lingering effects as long COVID. In the next Part, we describe how recent federal guidance and assistance relies on physiological measures in discussion of long COVID as a disability.

Through the course of the pandemic, federal agencies have continued to issue materials concerning COVID-19. Important for anti-discrimination purposes have been the various documents issued by the Department of Health and Human Services (DHHS), the Department of Justice (DOJ), the Food and Drug Administration (FDA), and the Equal Employment Opportunity Commission (EEOC). Many of these involved temporary suspensions of otherwise applicable regulations or enforcement. For example, the FDA suspended the requirement for in person visits for prescriptions of medication abortion.102102

Important DHHS determinations involved non-discrimination in access to crisis care (that is, to acute care such as ICU admission or ventilator support in circumstances of scarcity)103103 and the implications of Centers for Disease Control guidance for Emergency Medical Treatment and Labor Act obligations.104104 DHHS and DOJ have issued guidance on long COVID as a disability.105105 The EEOC has also issued and updated technical assistance for employers about COVID-19.106106

The guidance issued by DHHS and DOJ in July 2021107107

concerns Title II of the ADA (non-discrimination in public services),108108 Title III of the ADA (non-discrimination in public accommodations),109109 the Rehabilitation Act § 504,110110 and the Affordable Care Act § 1557.111111 The guidance follows the three-pronged definition of disability in the ADA that disability means a physical or mental impairment that substantially limits a major life activity, a record of the same, or being regarded as having the same.112112 In this sense, the guidance states somewhat tentatively that “long COVID can be a disability under the ADA, Section 504, and Section 1557 if it substantially limits one or more major life activities.”113113 It then pursues a clearly physiological account of determining how long COVID can meet the standard for actual disability, beginning by specifying that long COVID is an “impairment” because it “is a physiological condition affecting one or more body systems.”114114 Examples of such conditions include lung damage, kidney damage, heart damage, neurological damage, circulatory system damage such as impeded blood flow, or lingering emotional illness or other mental health conditions. When—as a result of such damage—a major body system malfunctions, a major life activity of the person is affected. Here, the reference is specifically to the ADAAA provision regarding bodily system functions as major life activities.115115

The remaining question within the DHHS/DOJ guidance for determining actual disability is whether bodily system damage is sufficient to “substantially limit” the major life activity. The guidance gives examples of such substantial limits of bodily function couched in terms of the impact of physiological bodily damage on the person.116116

For example, the guidance states that lung damage resulting in shortness of breath substantially limits the life activity of respiratory function. Intestinal pain, nausea, or vomiting lingering for months is a substantial limit of gastrointestinal function. Memory loss or “brain fog” is a substantial limit in brain function, concentrating, or thinking. All these statements continue to refer to the system function rather than to the impact of the possible COVID damage on the individual’s abilities to function in the world.117117 So, for example, the problem with lung damage is how respiratory function is affected, not how the person is able to perform daily tasks, walk, or sleep.

The EEOC has issued technical assistance concerning COVID-19 for employment beginning in the spring of 2020 and updated several times afterwards.118118

Much of the initial assistance concerned workplace safety and workers with COVID.119119 Extensive assistance addressed vaccination and the treatment of employees’ medical and religious objections. The assistance also considers reasonable accommodations for COVID, including teleworking, reduced contact or distancing, and changes to account for increased stress that may be more difficult for people with mental health conditions to handle. COVID illness itself may require accommodations to allow for recovery or symptom management. People also may need accommodations not because they have become ill with COVID but because they have other conditions that could make contracting COVID risky for them, such as diabetes or heart conditions. The technical assistance points out that the reasonableness of these accommodations may depend on the circumstances. Furthermore, accommodations are not required if they present an undue hardship for the employers.120120 The assistance points out that pandemic conditions may affect the calculation of whether an accommodation is an undue hardship; for example, allowing shift changes may now be a hardship when there are difficulties in making sure shifts are covered because of high infection rates among employees.121121 Cash-strapped employers may find accommodation-related expenses “significant” and thus a hardship, too.122122 In addition, the assistance considers how telework experience during the pandemic may be relevant to determining whether telework is a reasonable accommodation when employers later voice concerns that work cannot be successfully performed remotely.123123

Protection from discrimination based on association with a person with a disability has become especially important for many employees during the COVID-19 pandemic. The ADA provides that it is discrimination to exclude or otherwise deny equal jobs or benefits based on the known association of the employee to a person with a disability.124124

This statutory provision has been interpreted not to grant a right to reasonable accommodations to the employee based on associational discrimination.125125 Thus, the assistance reminds employers that employees are not entitled to claim accommodations because of COVID risks to individuals with whom they are in contact. Also, employees are not entitled to claim accommodations because they have been exposed to COVID by someone with whom they associate.

An update issued December 14, 2021, addresses specifically when COVID is an actual disability under the ADA.126126

The determination of disability, as always, involves an individualized assessment. The assessment must consider whether COVID is an impairment that substantially limits a major life activity. Thus, mild COVID symptoms comparable to those of an upper respiratory infection will not qualify as an actual disability. However, the assistance notes with reference to the HHS/DOJ guidance, malfunction of a major bodily system is an impairment of a major life activity.127127 This malfunction need not be of extended duration, but it must be sufficiently severe to qualify as an actual disability. One conclusion to draw from this analysis is that individuals suffering severe COVID-19 infections but recovering within six months might qualify as having an actual disability. As discussed above, it would be a separate question whether these individuals could qualify under the regarded as prong for disability, if their infections are not regarded by their employers as having an illness of at least six months duration. Consequently, individuals might fall into a gap between the actual and the regarded as prongs for disability when they have not been definitively diagnosed with long COVID, even though they may later be diagnosed with that condition. In the interim, unless they qualify as actually disabled, they will not be entitled to accommodations, with potentially deleterious consequences for their job performance and treatment by their employer.

Cases in which plaintiffs claim disability discrimination in employment due to COVID-19 were beginning to appear in the courts by the spring of 2022. To a significant extent, court decisions parallel the approaches taken to the evidence needed to survive dismissal when plaintiffs claim body system malfunction or ambiguous diagnoses as disabilities, with district courts in the Tenth and Second Circuits proving the most difficult.128128

Plaintiffs pleading COVID as an actual disability are at risk of the gaps we identified earlier.129129 They may not be able to claim actual disability if their initial infection is mild or short-term. Plaintiffs who claim adverse treatment—typically termination—because they informed their employer that they had COVID and were required to stay in quarantine may not qualify as actually disabled if their physical conditions were insufficiently severe or appear to have resolved. They may not qualify as regarded as disabled if their condition is judged transitory and minor. Plaintiffs who claim actual disability and the need for accommodations based on lingering COVID symptoms may be judged to have advanced insufficient evidence to demonstrate an impairment substantially limiting a major life activity. Also, plaintiffs are not entitled to accommodations based on their association with someone with COVID or based on their association with someone at high risk from COVID because of a disability. The sub-regulatory materials described in the preceding section have played an important role in the reasoning of some courts about whether COVID or long COVID are disabilities.130130

Take first claims by plaintiffs that a COVID-19 infection is an actual disability. A district court in the Tenth Circuit granted summary judgment to the employer when the employee claimed that she had been discharged because of exposure to her father’s COVID-19.131131

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.132132 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.” 133133 A district court in Missouri dismissed a claim of discrimination based on COVID-19 as an actual disability when the plaintiff had a “short and temporary illness” and did not plead further evidence of long COVID. 134134 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 and conflicting evidence about whether he had lingering problems with taste and smell.135135

District courts in the Eleventh Circuit have reached more mixed conclusions. A terminated employee 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.”136136

The court distinguished cases in which plaintiffs had described their symptoms less specifically.137137 In one of these cases, 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.”138138 The court noted, however, that the standard of evidence would be more demanding at the summary judgment stage, where plaintiff would need evidence that her condition was not severe or short term.

There are also cases in which the employee seeks COVID accommodations such as working from home due to an underlying health condition alleged to qualify as a disability. In these cases, the problem for the employee is not whether their COVID is a disability but whether their underlying condition is. Lupus is a disability,139139

as are multiple sclerosis,140140 cystic fibrosis and CF-related diabetes,141141 and renal tubular acidocis, a condition that causes kidney stones and requires surgery.142142 But in the judgment of one court, that the plaintiff was a smoker with a history of pneumonia was not sufficient for actual disability and accommodations, despite his increased COVID risk from these conditions.143143 On the other hand, in another district court the plaintiff survived a motion for failure to state a claim when she contended that her severe anxiety about catching COVID-19 because of a family history of Guillain-Barre syndrome could qualify as a disability.144144

COVID risk is not, however, just a matter of the employee’s underlying health conditions. COVID risk varies with the 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. Knowing that the employee has diabetes and that diabetes increases the likelihood that a COVID infection will be severe is insufficient to capture actual risk, which will depend on the extent of community spread of COVID, the availability or efficacy of vaccinations, and the COVID variants in circulation. In holding that plaintiff’s smoking and history of pneumonia were insufficient for disability, the court noted the import of social circumstances only to set them aside.145145

In rejecting plaintiff’s claim, the 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 from COVID infection. In explaining the distinction, the court noted as a difference 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.146146 The court thus recognized that circumstances matter, only to set them aside.

Several other district courts have looked more expansively at the plaintiff’s circumstances in deciding whether their underlying condition qualified them for COVID-related accommodations. For example, one plaintiff requested the accommodation of working from home during COVID because he had moderate asthma.147147

He alleged asthma as the impairment and breathing as the major life activity. The court reasoned that his claim could survive because, although asthma is not per se substantially limiting, plaintiff had brought evidence that he was under the care of several health providers for treatment, had comparatively frequent attacks despite following treatment recommendations, and was at higher risk of serious illness or death from COVID.148148 Whether COVID is a disability should be judged by the totality of the circumstances during the pandemic, this court said,149149 and we agree.

Now take cases in which employees claim that their respective employers regarded them as disabled due to COVID-19. In these cases, plaintiffs cannot claim a right to accommodation such as staying home to quarantine or working at home150150

but may argue that they were subject to adverse action such as termination because of their employers’ judgments about their condition. One kind of challenge that these plaintiffs will face is that employers could not have regarded them as having COVID if they were quarantining at home due to an exposure. It would create perverse incentives for plaintiffs to fail in such cases: the reason for quarantining is to avoid exposing others in the workplace in case the employee is ill with COVID.

But the case of Enny M. Alvarado, an accountant for ValCap, illustrates exactly these incentives.151151

Alvarado had worked in close proximity to a symptomatic co-worker whom the employer required to continue to work while awaiting results of a COVID-19 test.152152 When the co-worker’s test came back positive, Alvarado’s doctor ordered her to go home and quarantine for seven days. She informed her employer and requested COVID leave as a reasonable accommodation. The employer’s representative told her how to request the leave, but after she requested it, the employer terminated her instead of granting the leave. Reportedly, the representative stated that the employer had texted that “anyone who went home due to COVID-19 was not permitted back and was not needed.”153153 Alvarado could not claim actual disability and the accommodation; she had not become ill with COVID. The employer moved to dismiss Alvarado’s ADA claim on the basis that she had not plausibly alleged regarded as disability and the court granted the motion. In the Alvarado court’s view, Alvarado’s fundamental problem was that her allegation that her employer knew of her co-worker’s condition and her likely exposure did not permit the inference that the employer believed she had COVID and discharged her based on this belief.154154 On this court’s reasoning, the employer must believe that the employee has the condition in question to regard the employee as disabled.155155 The employer’s belief that the employee has been exposed to COVID will not suffice. Along the same lines, if an employer believes that an employee has COVID, but does not believe that the employee has long COVID, the employee will be unable to claim protection under the ADA.

Another potential problem for plaintiffs claiming regarded as disability is that their COVID infection is judged “transitory and minor.” In a Third Circuit district court decision, for example, the plaintiff was fired by her employer after she reported a positive COVID-19 test and a loss of taste and smell and requested leave to self-isolate.156156

The court denied the employer’s motion to dismiss on the ground that they had not regarded her as disabled but used reasoning that portends problems for people claiming they were regarded as disabled based on their COVID-19 infection. Under the reasoning of the EEOC technical assistance, the court said, the plaintiff could only have claimed actual disability if her infection had been sufficiently severe, which apparently it was not. Her employer argued that she could not come under the regarded as prong because her condition was in fact transitory and minor. The court disagreed: “[a]ccordingly, in light of the disclosures that Matias made to Terrapin involving her positive COVID-19 test and her disclosure of symptoms common to certain forms of COVID-19 that can carry longer term impairment of major life function, Matias has plausibly alleged that Terrapin regarded her as having an impairment that can substantially limit major life functions.”157157 Presumably, if Matias had had a COVID infection without loss of taste or smell, or if she had failed to notify the employer’s representative of this symptom, she would have failed in her argument that the employer regarded her as disabled and the court would have dismissed her ADA claim.

Following the reasoning of the Matias court, employees who are fired for mild COVID infections will not gain disability anti-discrimination protection as actually disabled; they will also not gain protection as regarded as disabled unless they can bring evidence of COVID’s longer-term impact on a major life activity such as the bodily function of taste or smell.158158

At least one court, however, has emphasized that the employer must show that the COVID infection was both transitory and minor and that assessing each of these is a fact intense inquiry not appropriately resolved at summary judgment which may only be granted in the absence of genuine material issues of fact.159159

Ironically, several courts have allowed plaintiffs’ cases to continue when their employer contends that they could not have regarded them as disabled because they did not think their COVID was a serious illness. One plaintiff was terminated after he informed his employer that he was sick with a sore throat and fever.160160

This plaintiff survived a motion to dismiss on a claim of that he had been regarded as disabled; the court reasoned that under the ADAAA plaintiffs do not need to allege the employer’s belief that the employee’s condition substantially limits a major life activity.161161 Another plaintiff faced an employer who said that he did not regard him as disabled because it was unproven that the employee’s underlying health condition put him at greater risk from COVID.162162 In this case, the employee had had open heart surgery several years earlier and asked for three weeks off because he was experiencing COVID symptoms. His employer laid him off because he was not willing to take responsibility for an employee with increased COVID risks. In refusing to grant the employer’s motion to dismiss, the court reasoned that the relevant inquiry under the ADAAA for regarded as disability is how the employer perceived the plaintiff not whether the plaintiff’s condition affected a major life activity.163163

Few decisions as of yet concern long COVID itself. One district court in the Third Circuit 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.164164

A different district court in that 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 and contended that he had been diagnosed with COVID, reasoning that he had not brought evidence of the severity or length of his disease or that his employer regarded him as disabled.165165

As suggested above, some courts take a physical reductionist approach to long COVID through which only those few individuals who possess biomarkers corroborating the diagnosis will be accorded protected status as individuals with disabilities under federal anti-discrimination law. This methodology is in contravention of the ADAAA’s intention to be more inclusive of conditions rising to a level of coverage. In consequence, a disjuncture arises between how courts understand actual disability for purposes of legal protection and how long COVID is diagnosed. Further, a significant gap arises under the ADAAA in legal responses to long COVID whereby those individuals who experience COVID for less than six months are not deemed qualified for coverage as functionally disabled individuals, and those people who might be regarded as disabled due to long COVID are ineligible to receive reasonable accommodations.

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 through the experiences of those with long COVID, instantiates disability as an inherently fixed, objectively and uniformly quantifiable phenomenon. It also reaffirms a medical model preference in leaving the process of defining disability to medical experts epistemically preferred by courts rather than accepting the views of the lived experience of the stakeholders themselves—persons with disabilities.

By contrast, a social model of disability looks at the relationship of impairment to the environment to understand disability. In that view, what is primarily disabling is the social construction of the world whereby societies make affirmative non-inherent choices in design and programming that exclude or include certain types of individuals, not the medical assessment of an individual’s body or mind. According to the social model of disability, disability itself is an evolving and fluid concept, one that is subject to evolving notions and understandings of “normalcy” versus variation of the human condition. Thus, we embrace conditions as falling within the disability category in relation to developing social understandings. To illustrate with one example, before the digital revolution, repetitive stress disorder was largely understood as the manifestation of repeated manual activities, such as those performed by Supreme Court litigant Etta Williams in an automobile assembly line.166166

Repetitive stress disorder is now most frequently associated as a byproduct of tendon damage arising from keyboard usage, and carpal tunnel syndrome is a commonly understood term both medically and socially.167167 The world of 2022 is replete with reliance on and frequent usage of keyboards and other typing technology (such as thumb-driven communication via iPhones), hence related injuries receive social recognition and empathy as a by-product of accessing our increasingly digital world. One can therefore imagine in the near future a similar degree of social cognition regarding the existence and implications of long COVID, both as a disabling phenomenon and as an ordinarily recognized form of disability. Such an understanding would track acceptances of other impairments as disabilities, for instance, PTSD and increasingly other mental health issues.

Currently, we are just scratching the surface as to COVID’s collateral damage, with long COVID being one effect among several.168168

Whether people who have been infected with COVID experience different rates of illness or disability later in life remains to be seen. In future years we are also likely to associate the pandemic with other conditions, some of which have easily identifiable biomarkers and some of which do not. These impairments can include: PTSD, depression, anxiety disorder, trauma, chronic obstructive pulmonary disease (COPD), and multisystem inflammatory syndrome (in both its adult and child-specific manifestations), among others. A comprehension of long COVID better grounded in a social model understanding of disability would acknowledge the sequela of long COVID—including fatigue, bodily pain, shortness of breath—as disabling both in reality and for the purposes of legal protection, rather than seeking to verify it biologically with medical measurements.

Approaching long COVID in this manner moves us beyond biologically reductionist proofs of disability typical of the medical model and shifts our socio-legal understanding into the more important normative goal of preventing discrimination on the basis of disability. This is because the question then becomes “what prejudices exist and how do we remove them” rather than the old and tired (and in theory, ADAAA-eviscerated) investigations into whether the plaintiff is “really” disabled and thus legally (and morally) worthy of protection from subordination. Such a shift would make the ADAAA more of a “living document” and move away from jurists and others who aver that only what is contained within the four corners of any statute, including the ADAAA, can be viewed as dispositive. It acknowledges that precisely because disability is an evolving concept, every possible manifestation of disability must be verifiable via biomarkers and listed within its governing statute. This mode of statutory interpretation has averred, for example, that the internet is not an ADA-recognized place of accommodation because it is not listed in the original statute, despite the ADA having been passed in 1990 prior to the digital revolution. A social understanding of the world that includes disability has an opposite view and instead embraces evolving socially cognized conditions. Operating from the opposite baseline whereby the disability category is promulgated in a rigid and instantiated laundry list and must be “proven” by access to unestablished biomarkers omits on the one hand the social aspects of the employee’s condition or need for accommodations and, on the other hand, the possibility of the employee’s being considered disabled at all. Doing so also evokes a misconception of the body: namely, that capabilities are bodily.

One proposal for diagnostic criteria for long COVID includes symptoms developing after a probable COVID-19 infection, lasting for more than 12 weeks, not explained by an alternative diagnosis, and reflecting the concurrence of multisystem clusters that may change over time.169169

Within these criteria, patients’ experiential accounts are given precedence over laboratory-based findings and are in harmony with ethics discussions cautioning physicians to listen carefully to patients with possible long COVID diagnoses.170170 These diagnostic criteria are very much in line with a social model account of disability.

Long COVID claims for disability-related employment discrimination have been met by physical reductionism during determinations of disability. Difficult to diagnose due to an absence of agreed-upon physiologically observed biomarkers, and liable to elude ADA coverage and/or eligibility for reasonable workplace accommodations, long COVID illustrates a misunderstanding of the relationship between disability, bodily function, and disability anti-discrimination law. Although the ADAAA was intended to extend the range of people considered to be disabled for purposes of disability anti-discrimination law, including bodily system function as a major life activity in the amended statute has contributed to problematic physical reductionism in disability determinations as demonstrated in recent federal court decisions. To remedy this discordance, we suggested how social understandings of the body and disability, congruent with the ADAAA, can counter misleading reductionism about ambiguously diagnosed conditions as disabilities, including long COVID.