"Long-COVID," Bodily Systems as ADAAA Major Life Activities, and the Social Model of Disability
- I. Introduction
- II. Ambiguous Diagnoses and Long COVID
- III. The ADAAA and the Definition of Disability
- IV. “Major Bodily Function” and Ambiguous Diagnoses in the Regulations and the Courts
- V. Federal Agency Approaches to Long COVID
- VI. COVID and Long COVID in the Courts
- VII. Significance of the Social Model of Disability for Ambiguous Diagnoses
- VIII. Conclusion
I. Introduction
TOPCOVID-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.1
A Clinical Case Definition of Post COVID-19 Conditions by a Delphi Consensus, World Health Org., (Oct. 6, 2021) at 2.
See discussion infra Part IV.
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)3
See Randolph W. Evans, Postconcussion Syndrome, UpToDate (Mar. 2022), https://www.uptodate.com/contents/postconcussion-syndrome[https://perma.cc/E662-4XZ2].
ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). These claims could conceivably also be determined under the Rehabilitation Act for those plaintiffs seeking redress for disability discrimination by recipients of federal funding. For the sake of clarity and convenience, we limit our arguments to the ADAAA.
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.5
Francis S. Collins, NIH Launches New Initiative to Study “Long COVID”, Nat’l Insts. of Health (Feb. 23, 2021), https://www.nih.gov/about-nih/who-we-are/nih-director/statements/nih-launches-new-initiative-study-long-covid[https://perma.cc/83VA-4PWM].
Amy Patterson et al., NIH RECOVER Listening Session – June 2021, Nat’l Insts. of Health (June 2, 2021), https://videocast.nih.gov/watch=42174[https://perma.cc/UNY3-FEP7].
II. Ambiguous Diagnoses and Long COVID
TOPThis 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.
A. Ambiguous Diagnoses
TOPAmbiguous diagnoses rely on reported or observed symptoms rather than on laboratory-confirmed measures such as serum creatinine, a measure of renal function.7
Symptoms and Diagnosis of ADHD, Ctr. for Disease Control & Prevention (Sept. 28, 2021) https://www.cdc.gov/ncbddd/adhd/diagnosis.html[https://perma.cc/4D5K-AMXV].
E.g., Abigail S. Dumas, What Long Covid Tells Us About the Limits of Medicine, NY Times (March 17, 2022), https://www.nytimes.com/2022/03/17/opinion/long-covid.html [https://perma.cc/SEH2-TB82];Massimo E. Maffei, Fibromyalgia: Recent Advances in Diagnosis, Classification, Pharmacotherapy and Alternative Remedies, 21 Int’l J. Molecular Sci. 7877 (2020).
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.9
Fibromyalgia: Understand How It’s Diagnosed, Mayo Clinic (Sept. 18, 2020), https://www.mayoclinic.org/diseases-conditions/fibromyalgia/in-depth/fibromyalgia-symptoms/art-20045401[https://perma.cc/8NTK-K4WY].
Inst. of Med. of the Nat’l Acads., Beyond Myalgic Encephalomyelitis/Chronic Fatigue Syndrome: Redefining an Illness 87 (2015); Joseph R. Yancey & Sarah M. Thomas, Chronic Fatigue Syndrome: Diagnosis and Treatment, 86 Am. Fam. Physicians 741 (Oct. 15, 2012).
Adrienne Dellwo, Myalgic Encephalomyelitis or Chronic Fatigue Syndrome, VeryWell Health (Nov. 18, 2020), https://www.verywellhealth.com/myalgic-encephalomyelitis-me-715663[https://perma.cc/N9Z3-9GKQ].
Inst. of Med., supra note NOTEREF _Ref102326917 \h 10 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300320036003900310037000000 , at 11.
Carol S. North et al., The Evolution of PTSD Criteria Across Editions of DSM, 28 Annals Clinical Psychiatry 197 (Aug. 2016) (documenting ambiguities and inconsistencies in diagnostic criteria for PTSD).
Adult Attention-Deficit/Hyperactivity Disorder (ADHD), Mayo Clinic (June 22, 2019) https://www.mayoclinic.org/diseases-conditions/adult-adhd/symptoms-causes/syc-20350878[https://perma.cc/7FSL-36HV].
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.15
E.g., Inst. of Med., supra note NOTEREF _Ref102326917 \h 10 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300320036003900310037000000 , at 30; see also Olga Khazan, The Tragic Neglect of Chronic Fatigue Syndrome, Atlantic (Oct. 8, 2015), https://www.theatlantic.com/health/archive/2015/10/chronic-fatigue-patients-push-for-an-elusive-cure/409534/[https://perma.cc/84PG-RD38].
Melinda Wenner Moyer, Women Are Calling Out ‘Medical Gaslighting’, NY Times (Mar. 28, 2022), https://www.nytimes.com/2022/03/28/well/live/gaslighting-doctors-patients-health.html[https://perma.cc/H29H-9RSR].
See generally Ian James Kidd & Havi Carel, Epistemic Injustice and Illness, 34 J. Applied Phil. 172 (2017); Havi Carel & Ian James Kidd, Epistemic Injustice in Healthcare: A Philosophical Analysis, 17 Med. Health Care & Phil. 529 (2014).
Kristen Margrethe Heggen & Henrik Berg, Epistemic Injustice in the Age of Evidence-Based Practice: The Case of Fibromyalgia, 8 Nature Hum. & Soc. Sci. Commc’ns 235, 240 (2021).
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.19
See discussion infra Part IV.B
42 U.S.C. § 12201(h).
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.21
See discussion infra Part IV.B.
See discussion infra Part IV.B.
B. Long COVID
TOPAs 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.23
See Sara Berg, What Doctors Wish Patients Knew About Long COVID, Am. Med. Ass’n (Oct. 22, 2021), https://www.ama-assn.org/delivering-care/public-health/what-doctors-wish-patients-knew-about-long-covid [https://perma.cc/L4GT-WYMW].
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.24
Hannah E. Davis et al., Characterizing Long COVID in an International Cohort: 7 Months of Symptoms and Their Impact, 38 eClinical Med. 101019, 8, 12 (2021).
For example, a New York Times story describes how Josie Cabrera Taveras has been turned down for disability benefits twice without “direct medical evidence of her condition” when scans did not show COVID-related tissue damage despite clinic notes about her symptoms. Amanda Morris, Another Struggle for Long Covid Patients: Disability Benefits, NY Times (Oct. 27, 2021), https://www.nytimes.com/2021/10/27/us/long-covid-disability-benefits.html [https://perma.cc/EM76-KB92];see also Lydia Wheeler, Long Covid’s Catch-22: Too Sick to Work, Yet Not Quite Disabled, Bloomberg Law (Nov. 18, 2021), https://news.bloomberglaw.com/health-law-and-business/long-covids-catch-22-too-sick-to-work-yet-not-quite-disabled[https://perma.cc/XZ6X-36LU].
No. 5:21-CV-02288, 2021 WL 4206759, at *1 (E.D. Pa. Sept. 16, 2021).
No. 3:21-CV-1830-D, 2022 WL 19686, at *1 (N.D. Tex. Jan. 3, 2022).
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.”28
42 U.S.C. § 12101 note (a)(2).
154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Senate Statement of Managers).
Toyota Motor Mfg. v. Williams, 534 U.S. 184, 192 (2002) (holding that an impairment is not a disability unless it impedes performance of a range of tasks central to daily living for most people).
Id. at 197.
In responding to Williams and other decisions32
Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999) (holding that disability determinations must be made case-by-case); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) (holding that for a determination of disability, individuals should be assessed in their mitigated states).
42 U.S.C. § 12102(1).
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 . . . .”34
154 Cong. Rec. S8344 (daily ed. Sept. 11, 2008).
42 U.S.C. § 12102(4)(A).
This rule of construction applies to all three prongs of the disability definition: actual disability, record of a disability, and regarded as disabled.36
42 U.S.C. § 12102(4).
42 U.S.C. § 12102(2)(A).
154 Cong. Rec. S8346 (daily ed. Sept. 11, 2008).
42 U.S.C. § 12102(2)(B).
154 Cong. Rec. S8346 (daily ed. Sept. 11, 2008).
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.41
42 U.S.C. § 12102(3)(B).
154 Cong. Rec. S8346 (daily ed. Sept 11, 2008).
42 U.S.C. § 12201(h).
154 Cong. Rec. S8347 (daily ed. Sept 11, 2008).
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.
A. EEOC Regulations
TOPThe 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,45
See 29 C.F.R. § 1630.2(j).
29 C.F.R. § 1630.2(i)(2) (major life activity not demanding); 29 C.F.R. § 1630.2(j)(1)(i) (substantially limits not demanding).
42 U.S.C. § 12102 (4)(A).
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.”48
29 C.F.R. § 1630.2(j)(1)(iii).
29 C.F.R. § 1630.2(j)(1)(ii).
29 C.F.R. § 1630.2(j)(1)(v).
29 C.F.R. § 1630.2(j)(3)(ii).
29 C.F.R. § 1630.2(j)(3)(iii).
To assess how courts are handling plaintiffs’ contentions of actual disability based on a substantial limitation of a major bodily function, we searched Westlaw for (disability & ADAAA & “major bodily function” & “major life activity”). Our search initially yielded 246 cases through March 15, 2022. The complete data are on file with the authors.
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,54
The standards for survival of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) and a motion for summary judgment are different. The former is a pleading requirement and plaintiffs must only allege claims which, if true, would be sufficient to support the case. The latter is an evidentiary standard, and the plaintiff must put forth evidence sufficient to support their prima facie case and to rebut defendant’s assertion of legitimate non-discriminatory reasons for their actions. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002). Their import for the plaintiff is the same, however: a plaintiff who loses on either basis because they have not met the standard applied to an assertion of one of the prongs of disability has lost their claim to anti-discrimination without being able to advance any evidence of what actually happened. For the most part in what follows, therefore, we will not distinguish between these two different ways in which the plaintiff can lose at preliminary stages in the case.
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.55
See Neri v. Bd. of Educ., 860 Fed. App’x 556 (10th Cir. 2021).
Id. at 563.
Id.
Scavetta v. Dillon Co., Inc., 569 Fed. App’x 622, 625 (10th Cir. 2014). See also Felkins v. City of Lakewood, 774 F.3d 647, 651 (10th Cir. 2014) (concluding that expert medical testimony about the causal effects of avascular necrosis on circulatory function necessary to show actual disability).
E.g., Bowers v. Netsmart Techs. Inc., 2021 WL 2104985 (D. Kan. 2021) (requiring additional evidence to show that diabetes affected major life activities of sleeping and working); Tygrett v. Denver Water, 2020 WL 6873953 (D. Colo. Nov. 23, 2020) (finding medical records referencing limits on lifting barely sufficient to make an individualized showing that the plaintiffs’ back injury substantially limiting in comparison to the general population); EEOC v. UPS Ground Freight, Inc., 2020 WL 1984293 (D. Kan. Apr. 27 2020) (not reported) (only considering whether plaintiff was regarded as disabled because he had recovered from the stroke that caused muscular weakness). But see Angell v. Fairmount Fire Protection Dist., 907 F. Supp. 2d 1242 (D. Colo. 2012) (finding cancer substantially limited major life activity of normal cell growth).
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,60
Betances v. MetroPlus Health Plan, Inc., No. 20-CV-2967 (JGK), 2021 WL 2653363, at *4–5 (S.D.N.Y. July 7, 2021).
Larnard v. McDonough, No. 6:17-CV-06257 EAW, 2022 WL 31505, at *6 (W.D.N.Y. Jan. 4, 2022) (fear of flying); Oyer v. N.Y. State, No. 1:19-CV-01201 EAW, 2020 WL 5642186, at *7 (W.D.N.Y. Sept. 22, 2020) (missing work); Birnbach v. Americares Found. Inc., No. 3:19-CV-01328 (VLB), 2021 WL 4263361, at *10 (D. Conn. Sept. 18, 2021) (finding impairments of ADHD, dyslexia, and auditory processing disorder insufficient to show substantial limit in major life activities of reading, learning, concentrating, thinking, and communicating with others without more evidence, although that evidence could be non-medical); Pineda v. ESPN, Inc., No. 3:18-CV-325 (MPS), 2018 WL 5268123, at *4 (D. Conn. Oct. 23, 2018) (describing need for specific evidence of how rape related PTSD causes limits in a major life activity); Martinsky v. City of Bridgeport, 814 F. Supp. 2d 130, 143 (D. Conn. 2011), aff’d, 504 F. App’x 43 (2d Cir. 2012) (finding anxiety disorder debilitating to the point of withdrawing to the bathroom during work and requiring hospitalization insufficient to survive summary judgment as substantially limiting a major life activity).
Martinsky, 814 F. Supp. 2d at 143.
Robles v. Medisys Health Network, Inc., No. 19-CV-6651 (ARR), 2020 WL 3403191, at *11 (E.D.N.Y. June 19, 2020).
Zako v. Encompass Digit. Media, Inc., No. 3:19-CV-844 (MPS), 2020 WL 3542323, at *8 (D. Conn. June 30, 2020).
Shine v. N.Y.C. Hous. Auth., No. 19-CV-04347 (RA), 2020 WL 5604048, at *7 (S.D.N.Y. Sept. 18, 2020) (but similar symptoms without the prescribed mechanical support would not suffice).
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.66
Barlia v. MWI Veterinary Supply, Inc., 721 Fed. App’x 439, 445–46 (6th Cir. 2018) (internal quotation marks omitted).
Id. at 447; see also Peltier v. John Deere Co., No. 3:20-CV-435, 2022 WL 424882, at *5 (E.D. Tenn. Jan. 14, 2022) (finding diagnoses of diabetes alone insufficient to show substantial limitation of major life activity but plaintiff survived summary judgment on actual disability with evidence that he is insulin dependent, his diabetes was not always under control, and he had a pending appointment with endocrinology to see if an insulin pump would be appropriate).
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.68
McGriff v. Beavercreek City Sch. Dist., No. 3:18-CV-372, 2021 WL 2401921, at *8 (S.D. Ohio June 11, 2021).
Swanton v. Wyndham Vacation Resorts, Inc., No. 3:20-CV-00480, 2021 WL 5744708, at *16 (M.D. Tenn. Dec. 1, 2021).
McGonegle v. Select Comfort Retail Corp., No. 1:19-CV-442, 2021 2021 WL 229038, at *8 (S.D. Ohio Jan. 22, 2021).
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.71
Alston v. Park Pleasant, 679 Fed. App’x 169, 172 (3d Cir. 2017) (quoting 29 C.F.R. § 1630.2(j)(3)(ii)).
Marx v. Arendosh Heating & Cooling, Inc., No. 2:20-CV-00338, 2020 WL 7425275 at *4 (W.D. Pa. Dec. 18, 2020).
Doe v. Triangle Doughnuts, LLC, 472 F. Supp. 3d 115, 135 (E.D. Pa. 2020) (expressing skepticism about the sufficiency of the evidence).
Weber v. Don Longo, Inc., No. CV 15-2406 (KM)(MAH), 2018 WL 1135333, at *12 (D.N.J. Mar. 2, 2018).
Howard v. Pa. Dep’t of Pub. Welfare, No. CIV.A. 11-1938, 2013 WL 102662, at *11 (E.D. Pa. Jan. 9, 2013) (not reported).
Id.
Santee v. Lehigh Valley Health Network, Inc., No. CIV.A. 13-3774, 2013 WL 6697865, at *5 (E.D. Pa. Dec. 19, 2013); see also Kravits v. Shinseki, No. CIV.A. 10-861, 2012 WL 604169, at *6 (W.D. Pa. Feb. 24, 2012) (holding that plaintiff survived summary judgment on actual disability by alleging that sleep apnea interfered with major life activity of sleeping; court did not address claim that fibromyalgia substantially limited major life activities); Geronimo v. Pottsville Ford, No. 3:20-CV-02145, 2021 W.L. 418629, at *4 (M.D. Pa. Sept. 14, 2021) (giving plaintiff the benefit of doubt that asthma substantially limits the life activity of breathing and dyslexia limits the life activity of reading; even though pleadings lack specificity, plaintiff has provided information beyond the diagnoses).
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.78
Miller v. Md. Dep’t of Nat. Res., 813 F. App’x 869, 875–76 (4th Cir. 2020) (per curiam); Miller v. Md. Dep’t of Nat. Res., No. CV GLR-17-2349, 2021 WL 3617214, at *9 (D. Md. Aug. 16, 2021); see also Hice v. Mazzella Lifting Techs., Inc., No. 2:21CV281, 2022 WL 636640, at *6 (E.D. Va. Mar. 4, 2022) (distinguishing initial complaint in Miller because Hice had evidence that his degenerative arthritis caused debilitating pain and limited use of back and legs); Khan v. UNC Health Care Sys., No. 1:20CV977, 2021 WL 4392012, at *5 (M.D.N.C. Sept. 24, 2021) (holding that non-alcoholic steatohepatitis, ulcerative colitis, splenomegaly, hematuria, and kidney stones sufficient to survive summary judgment because they substantially limiting digestive system and bladder function); Granda v. Old Dominion Freight Line, Inc., No. CV 3:19-3294-JMC-KDW, 2021 WL 4596995, at *8 (D.S.C. July 14, 2021), report and recommendation adopted, No. 3:19-CV-03294-JMC, 2021 WL 4472743 (D.S.C. Sept. 30, 2021) (finding it a “close one” but that plaintiff survived summary judgment on actual disability based on inconclusive angiogram, slurred speech and issues with balance); U.S. Equal Emp. Opportunity Comm’n v. CACI Secured Transformations, LLC, No. CV JKB-19-2693, 2021 WL 1840807, at *15 (D. Md. May 7, 2021) (holding that the concussion and brain aneurism causing chronic headaches and difficulty with concentration, sensitivity to light and sound, nausea, dizziness substantially limited life activities of concentrating and thinking and neurological and brain functions as a matter of law).
Patton v. Shulkin, No. 7:16-CV-00250, 2018 WL 1321589, at *7 (W.D. Va. Mar. 14, 2018).
Steinhilber v. Yanfeng US Auto. Interiors I, LLC, No. 6:18-CV-2966-TMC-KFM, 2020 WL 6219421, at *11 (D.S.C. May 11, 2020), report and recommendation adopted sub nom. Steinhilber v. Yanfeng US Auto. Interiors Sys. I, LLC, No. 6:18-CV-2966-TMC, 2020 WL 4915568 (D.S.C. Aug. 21, 2020), appeal dismissed, No. 20-2012, 2021 WL 1113204 (4th Cir. Jan. 6, 2021).
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).81
Williams v. Tarrant Cnty. Coll. Dist., 717 F. App’x 440, 449 (5th Cir. 2018).
Id. at 448 (referencing 29 C.F.R. § 1630.2(j)(1)(v)).
Equal Emp. Opportunity Comm’n v. K&L Auto Crushers, LLC, No. 620-CV-00455-JCB-JDL, 2021 WL 391313, at *6 (E.D. Tex. Feb. 1, 2021), report and recommendation adopted, No. 6:20-CV-00455, 2021 WL 742875 (E.D. Tex. Feb. 25, 2021); Oncale v. CASA of Terrebonne Par., Inc., No. CV 19-14760, 2020 WL 3469838, at *6 (E.D. La. June 25, 2020); Equal Emp. Opportunity Comm’n v. Mid S. Extrusion Inc., 341 F. Supp. 3d 653, 660 (W.D. La. 2018).
McKinney v. Sheriffs Off. Rapides Par., No. 1:19-CV-01339, 2021 WL 1083979, at *6 (W.D. La. Mar. 19, 2021).
Gonzalez v. Tex. Health & Hum. Servs. Comm’n, No. 5:13-CV-183-DAE, 2014 WL 6606629, at *8 (W.D. Tex. Nov. 19, 2014).
Mid S. Extrusion, 341 F. Supp. 3d at 660.
Rodriguez v. Dollar Gen. Corp., No. SA-18-CV-00713-JKP, 2020 WL 4434932, at *5 (W.D. Tex. July 30, 2020).
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 function88
Mulcahy v. Cook Cnty., No. 17 C 8235, 2020 WL 6940982 at *12 (N.D. Ill. Nov. 25, 2020).
Hoffman v. Carefirst, 737 F. Supp. 2d 976, 985 (N.D. Ind. 2010).
Monroe v. Indiana, No. 1:14-CV-00252-SEB-DML, 2016 WL 1270202, at *8 (S.D. Ind. Mar. 31, 2016).
Stevens v. Ill. Dep’t of Corr., No. 1:12-CV-01419-SLD-TSH, 2015 WL 5686615, at *9 (C.D. Ill. Sept. 28, 2015).
Wirey v. Richland Comty. Coll., 913 F. Supp. 2d 633, 641–42 (C.D. Ill. 2012).
Grive v. Clark Cnty., No. 2:17-CV-03109-JAD-VCF, 2019 WL 12875432, at *7 (D. Nev. Dec. 2, 2019).
Dentice v. Farmers Ins. Exch., No. 10-C-113, 2012 WL 2504046, at *11 (E.D. Wis. June 28, 2012).
Jackson v. Union Pac. R.R., No. 4:19-CV-00069-RGE-RAW, 2021 WL 1726895, at *14 (S.D. Iowa Mar. 29, 2021), appeal filed.
Torres v. Weigel Broad. Co., 852 F. Supp. 2d 1106, 1112 (E.D. Wis. 2012).
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 sight97
Felix v. Key Largo Mgmt. Corp., No. 21-10381, 2021 WL 5037570, at *3 (11th Cir. Oct. 29, 2021) (per curiam).
Mazzeo v. Color Resols. Int’l, LLC, 746 F.3d 1264, 1268 (11th Cir. 2014).
Lewis v. City of Union City, 934 F.3d 1169, 1181 (11th Cir. 2019).
Callahan v. Emory Healthcare, Inc., No. 1:18-CV-4856-WMR-JSA, 2021 WL 2483160, at *18 (N.D. Ga. Jan. 7, 2021), report and recommendation adopted, No. 1:18-CV-04856-WMR, 2021 WL 732352 (N.D. Ga. Feb. 10, 2021), aff’d, No. 21-10541, 2021 WL 4461587 (11th Cir. Sept. 29, 2021).
Adams v. Crestwood Med. Ctr., 504 F. Supp. 3d 1263, 1284 (N.D. Ala. 2020).
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.102
Questions and Answers on Mifeprex, U.S. Food & Drug Admin., (Dec. 16, 2021), https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/questions-and-answers-mifeprex[https://perma.cc/FRG3-QGEW].
OCR Provides Technical Assistance to Ensure Crisis Standards of Care Protect Against Age and Disability Discrimination, U.S. Dep’t of Health & Hum. Services (Jan. 14, 2021), https://www.hhs.gov/about/news/2021/01/14/ocr-provides-technical-assistance-ensure-crisis-standards-of-care-protect-against-age-disability-discrimination.html[https://perma.cc/XJW9-4NBN].
Emergency Medical Treatment and Labor Act (EMTALA) Requirements and Implications Related to COVID-19 (Revised), Ctrs. for Medicare & Medicaid Servs. (March 30, 2020), https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/emergency-medical-treatment-and-labor-act-emtala-requirements-and-implications-related-covid19[https://perma.cc/D3AV-HFKN].
Off. for Civ. Rights, Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557, U.S. Dep’t of Health & Hum. Servs. (July 26, 2021), https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-covid-disability/index.html[https://perma.cc/S38D-7CX8].
What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Emp. Opportunity Comm’n (Jul. 12, 2022), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws [https://perma.cc/G6NH-L4DU].
The guidance issued by DHHS and DOJ in July 2021107
Off. for Civ. Rights, supra note NOTEREF _Ref102387981 \h 105 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300380037003900380031000000 .
42 U.S.C. §§ 12131–12134.
42 U.S.C. §§ 12181–12189.
29 U.S.C. § 794.
42 U.S.C. § 18116(a).
42 U.S.C. § 12102(1).
Off. for Civ. Rights, supra note NOTEREF _Ref102387981 \h 105 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300380037003900380031000000 .
Id.
42 U.S.C. § 12102(2)(B).
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.116
Off. for Civ. Rights, supra note NOTEREF _Ref102387981 \h 105 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300380037003900380031000000 .
Id.
The EEOC has issued technical assistance concerning COVID-19 for employment beginning in the spring of 2020 and updated several times afterwards.118
U.S. Equal Emp. Opportunity Comm’n, supra note NOTEREF _Ref102389127 \h 106 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300380039003100320037000000 .
Id.
42 U.S.C. § 12112(b)(5); 42 U.S.C. § 12111(10) (defining “undue hardship”).
U.S. Equal Emp. Opportunity Comm’n, supra note NOTEREF _Ref102389127 \h 106 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300380039003100320037000000 .
Id.
Id.
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.124
42 U.S.C. § 12112(b)(4).
Den Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997); Questions & Answers: Association Provision of the ADA, U.S. Equal Emp. Opportunity Comm’n (Oct. 17, 2005), https://www.eeoc.gov/laws/guidance/questions-answers-association-provision-ada#:~:text=What%20is%20the%20association%20provision,person%20with%20a%20known%20disability[https://perma.cc/Q7AS-PF9B].
An update issued December 14, 2021, addresses specifically when COVID is an actual disability under the ADA.126
U.S. Equal Emp. Opportunity Comm’n, supra note NOTEREF _Ref102389127 \h 106 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300380039003100320037000000 .
Id.
VI. COVID and Long COVID in the Courts
TOPCases 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.128
See supra notes 55–65 and accompanying text.
See infra Part III.
See discussion infra Part V.
A. COVID as an Actual Disability
TOPTake 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-19.131
Baum v. Dunmire Prop. Mgmt., Inc., No. 21-CV-00964-CMA-NYW, 2022 WL 889097, at *5 (D. Colo. Mar. 25, 2022).
Id.
Id. (interpreting both the guidance and the “transitory and minor” statutory language).
Anderson v. L. Keeley Construction, 2022 W.L. 3585596 (E.D. Mo. Aug. 22, 2022).
Earl v. Good Samaritan Hosp. of Suffern, No. 20 CV 3119 (NSR), 2021 WL 4462413, at *6 (S.D.N.Y. Sept. 28, 2021); see also Williams v. City of New York, No. 20-CV-8622 (JPO), 2022 WL 976966, at *2 (S.D.N.Y. Mar. 31, 2022) (dismissing claim of actual disability when plaintiff did not allege facts regarding his COVID symptoms or what major life activities he could not perform as a result), Earl v. Good Samaritan Hosp. of Suffern NY, No. 20 CIV. 3119 (NSR), 2022 WL 4087597 (S.D.N.Y. Sept. 6, 2022) (plaintiff needed to be able to argue that his condition substantially limited his major life activities at the time he was denied the accommodation and cannot use later long COVID symptoms to show this).
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.”136
Brown v. Roanoke Rehab. & Healthcare Ctr., No. 3:21-CV-00590-RAH, 2022 WL 532936, at *1 (M.D. Ala. Feb. 22, 2022) (citing OSHA guidance).
Id. at *4 (citing Champion v. Mannington Mills, Inc., 538 F. Supp. 3d 1344 (M.D. Ga. 2021) and Payne v. Woods Services, Inc., 520 F. Supp. 3d 670 (E.D. Pa. 2021); see also Cupi v. Carle Bromenn Med. Ctr., No. 1:21-CV-01286, 2022 WL 808209, at *2 (C.D. Ill. Mar. 16, 2022).
Champion, 538 F. Supp. at 1349.
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,139
Laguerre v. Nat’l Grid USA, No. 20-3901-CV, 2022 WL 728819, at *1 (2d Cir. Mar. 11, 2022).
Arazi v. Cohen Bros. Realty Corp., No. 1:20-CV-8837-GHW, 2022 WL 912940, at *8 (S.D.N.Y. Mar. 28, 2022).
DiFranco v. City of Chicago, No. 21 C 1600, 2022 WL 672746, at *4 (N.D. Ill. Mar. 7, 2022) (allowing suit for failure to accommodate to survive motion to dismiss when plaintiff was at increased COVID risk due to his underlying health conditions).
Hermes v. Okla. Arthritis Ctr., No. CIV-20-871-SLP, 2021 WL 3540322, at *4 (W.D. Okla. June 8, 2021).
Frederick v. Allor Mfg., Inc., No. 2:20-CV-12790-TGB-RSW, 2022 WL 598746, at *5 (E.D. Mich. Feb. 28, 2022).
Russo v. Moore, Ingram, Johnson, & Steele, LLP, 2022 WL 1787102, (M.D. Tenn. 2022), at *13.
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.145
Frederick, 2022 WL 598746, at *4.
Id. (distinguishing Silver v. City of Alexandria, 470 F. Supp. 3d 616, 622 (W.D. La. 2020)).
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.147
Peeples v. Clinical Support Options, Inc., 487 F. Supp. 3d 56, 63 (D. Mass. 2020).
Peeples, 487 F. Supp. 3d at 63; see also Silver, 470 F. Supp. 3d at 621–22 (judging disability by the totality of the circumstances under COVID); Valentine v. Collier, No. 4:20-CV-1115, 2020 WL 3625730, at *2 (S.D. Tex. July 2, 2020).
Peeples, 487 F. Supp. 3d at 63.
B. COVID as Regarded as Disability
TOPNow 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 home150
42 U.S.C. § 12201(h).
But the case of Enny M. Alvarado, an accountant for ValCap, illustrates exactly these incentives.151
See Alvarado v. ValCap Grp., LLC, No. 3:21-CV-1830-D, 2022 WL 19686, at *1 (N.D. Tex. Jan. 3, 2022).
Id. at *1.
Id.
Id. at *7.
Id.
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.156
Matias v. Terrapin House, Inc., No. 5:21-CV-02288, 2021 WL 4206759, at *4 (E.D. Pa. Sept. 16, 2021); see also Brown v. Roanoke Rehab. & Healthcare Ctr., No. 3:21-CV-00590-RAH, 2022 WL 532936, at *6 (E.D. Ala. Feb. 22, 2022) (finding that an employee could plead regarded as discrimination when she informed her employer of ongoing severe symptoms of COVID).
Matias, 2021 WL 4206759, at *4.
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.158
We wonder if these rulings will create incentives, or at least signals, for employees with mild COVID cases, including omicron and BA2 variants, to return to work and infect others despite their sensible misgivings.
Booth v. GTE Fed. Credit Union, No. 8:21-CV-1509-KKM-JSS, 2021 WL 5416690, at *5 (M.D. Fla. Nov. 20, 2021); see also Guerrero v. Summit Aerospace, Inc., No. 21-CV-24006, 2022 WL 579499, at *4 (S.D. Fla. Feb. 25, 2022) (declining to decide whether COVID is transitory and minor at the summary judgment stage when plaintiff fired two weeks after returning from a quarantine due to COVID exposure).
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.160
Fortun v. iAero Thrust LLC., No. 21-CV-23348, 2022 WL 446209, at *1 (S.D. Fla. Feb. 14, 2022).
Id. at *5.
Kim v. Friends Tek, LLC, No. 1:20-CV-4276-AT-JSA, 2020 WL 11885523, at *8 (N.D. Ga. Dec. 21, 2020), report and recommendation adopted, No. 1:20-CV-4276-AT-JSA, 2021 WL 4839090 (N.D. Ga. Jan. 8, 2021).
Id.
C. Actual Disability: Long COVID as an Ambiguous Diagnosis
TOPFew 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.164
Burbach v. Arconic Corp., No. 2:20-CV-00723-CRE, 2021 WL 4306244, at *7 (W.D. Pa. Sept. 22, 2021).
Payne v. Woods Servs., Inc., 520 F. Supp. 3d 670, 679 (E.D. Pa. 2021) (plaintiff’s claim for interference with FMLA leave did survive motion to dismiss, however).
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.166
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002).
Computer-Related Repetitive Stress Injuries, Johns Hopkins, https://www.hopkinsallchildrens.org/Patients-Families/Health-Library/HealthDocNew/Computer-Related-Repetitive-Stress-Injuries[https://perma.cc/M6X2-5RJU].
Currently, we are just scratching the surface as to COVID’s collateral damage, with long COVID being one effect among several.168
Rachel L. Levine, Addressing the Long-term Effects of COVID-19, JAMA 328(9), 823–24 (2022), https://jamanetwork.com/journals/jama/fullarticle/2795139[https://perma.cc/NYE9-ZS2C].
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.169
Antoni Sisó-Almariall et al., Long Covid-19: Proposed Primary Care Clinical Guidelines for Diagnosis and Disease Management, 18 Int’l. J. Env’t Rsch. & Pub. Health 4350 (2021).
Dorothy Wall, The Importance of Listening in Treating Invisible Illness and Long-Haul COVID-19, 23 Am. Med. Ass’n J. Ethics 590 (2021).
VIII. Conclusion
TOPLong 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.
- 1A Clinical Case Definition of Post COVID-19 Conditions by a Delphi Consensus, World Health Org., (Oct. 6, 2021) at 2.
- 2See discussion infra Part IV.
- 3See Randolph W. Evans, Postconcussion Syndrome, UpToDate (Mar. 2022), https://www.uptodate.com/contents/postconcussion-syndrome[https://perma.cc/E662-4XZ2].
- 4ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). These claims could conceivably also be determined under the Rehabilitation Act for those plaintiffs seeking redress for disability discrimination by recipients of federal funding. For the sake of clarity and convenience, we limit our arguments to the ADAAA.
- 5Francis S. Collins, NIH Launches New Initiative to Study “Long COVID”, Nat’l Insts. of Health (Feb. 23, 2021), https://www.nih.gov/about-nih/who-we-are/nih-director/statements/nih-launches-new-initiative-study-long-covid[https://perma.cc/83VA-4PWM].
- 6Amy Patterson et al., NIH RECOVER Listening Session – June 2021, Nat’l Insts. of Health (June 2, 2021), https://videocast.nih.gov/watch=42174[https://perma.cc/UNY3-FEP7].
- 7Symptoms and Diagnosis of ADHD, Ctr. for Disease Control & Prevention (Sept. 28, 2021) https://www.cdc.gov/ncbddd/adhd/diagnosis.html[https://perma.cc/4D5K-AMXV].
- 8E.g., Abigail S. Dumas, What Long Covid Tells Us About the Limits of Medicine, NY Times (March 17, 2022), https://www.nytimes.com/2022/03/17/opinion/long-covid.html [https://perma.cc/SEH2-TB82];Massimo E. Maffei, Fibromyalgia: Recent Advances in Diagnosis, Classification, Pharmacotherapy and Alternative Remedies, 21 Int’l J. Molecular Sci. 7877 (2020).
- 9Fibromyalgia: Understand How It’s Diagnosed, Mayo Clinic (Sept. 18, 2020), https://www.mayoclinic.org/diseases-conditions/fibromyalgia/in-depth/fibromyalgia-symptoms/art-20045401[https://perma.cc/8NTK-K4WY].
- 10Inst. of Med. of the Nat’l Acads., Beyond Myalgic Encephalomyelitis/Chronic Fatigue Syndrome: Redefining an Illness 87 (2015); Joseph R. Yancey & Sarah M. Thomas, Chronic Fatigue Syndrome: Diagnosis and Treatment, 86 Am. Fam. Physicians 741 (Oct. 15, 2012).
- 11Adrienne Dellwo, Myalgic Encephalomyelitis or Chronic Fatigue Syndrome, VeryWell Health (Nov. 18, 2020), https://www.verywellhealth.com/myalgic-encephalomyelitis-me-715663[https://perma.cc/N9Z3-9GKQ].
- 12Inst. of Med., supra note NOTEREF _Ref102326917 \h 10 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300320036003900310037000000 , at 11.
- 13Carol S. North et al., The Evolution of PTSD Criteria Across Editions of DSM, 28 Annals Clinical Psychiatry 197 (Aug. 2016) (documenting ambiguities and inconsistencies in diagnostic criteria for PTSD).
- 14Adult Attention-Deficit/Hyperactivity Disorder (ADHD), Mayo Clinic (June 22, 2019) https://www.mayoclinic.org/diseases-conditions/adult-adhd/symptoms-causes/syc-20350878[https://perma.cc/7FSL-36HV].
- 15E.g., Inst. of Med., supra note NOTEREF _Ref102326917 \h 10 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300320036003900310037000000 , at 30; see also Olga Khazan, The Tragic Neglect of Chronic Fatigue Syndrome, Atlantic (Oct. 8, 2015), https://www.theatlantic.com/health/archive/2015/10/chronic-fatigue-patients-push-for-an-elusive-cure/409534/[https://perma.cc/84PG-RD38].
- 16Melinda Wenner Moyer, Women Are Calling Out ‘Medical Gaslighting’, NY Times (Mar. 28, 2022), https://www.nytimes.com/2022/03/28/well/live/gaslighting-doctors-patients-health.html[https://perma.cc/H29H-9RSR].
- 17See generally Ian James Kidd & Havi Carel, Epistemic Injustice and Illness, 34 J. Applied Phil. 172 (2017); Havi Carel & Ian James Kidd, Epistemic Injustice in Healthcare: A Philosophical Analysis, 17 Med. Health Care & Phil. 529 (2014).
- 18Kristen Margrethe Heggen & Henrik Berg, Epistemic Injustice in the Age of Evidence-Based Practice: The Case of Fibromyalgia, 8 Nature Hum. & Soc. Sci. Commc’ns 235, 240 (2021).
- 19See discussion infra Part IV.B
- 2042 U.S.C. § 12201(h).
- 21See discussion infra Part IV.B.
- 22See discussion infra Part IV.B.
- 23See Sara Berg, What Doctors Wish Patients Knew About Long COVID, Am. Med. Ass’n (Oct. 22, 2021), https://www.ama-assn.org/delivering-care/public-health/what-doctors-wish-patients-knew-about-long-covid [https://perma.cc/L4GT-WYMW].
- 24Hannah E. Davis et al., Characterizing Long COVID in an International Cohort: 7 Months of Symptoms and Their Impact, 38 eClinical Med. 101019, 8, 12 (2021).
- 25For example, a New York Times story describes how Josie Cabrera Taveras has been turned down for disability benefits twice without “direct medical evidence of her condition” when scans did not show COVID-related tissue damage despite clinic notes about her symptoms. Amanda Morris, Another Struggle for Long Covid Patients: Disability Benefits, NY Times (Oct. 27, 2021), https://www.nytimes.com/2021/10/27/us/long-covid-disability-benefits.html [https://perma.cc/EM76-KB92];see also Lydia Wheeler, Long Covid’s Catch-22: Too Sick to Work, Yet Not Quite Disabled, Bloomberg Law (Nov. 18, 2021), https://news.bloomberglaw.com/health-law-and-business/long-covids-catch-22-too-sick-to-work-yet-not-quite-disabled[https://perma.cc/XZ6X-36LU].
- 26No. 5:21-CV-02288, 2021 WL 4206759, at *1 (E.D. Pa. Sept. 16, 2021).
- 27No. 3:21-CV-1830-D, 2022 WL 19686, at *1 (N.D. Tex. Jan. 3, 2022).
- 2842 U.S.C. § 12101 note (a)(2).
- 29154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Senate Statement of Managers).
- 30Toyota Motor Mfg. v. Williams, 534 U.S. 184, 192 (2002) (holding that an impairment is not a disability unless it impedes performance of a range of tasks central to daily living for most people).
- 31Id. at 197.
- 32Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999) (holding that disability determinations must be made case-by-case); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) (holding that for a determination of disability, individuals should be assessed in their mitigated states).
- 3342 U.S.C. § 12102(1).
- 34154 Cong. Rec. S8344 (daily ed. Sept. 11, 2008).
- 3542 U.S.C. § 12102(4)(A).
- 3642 U.S.C. § 12102(4).
- 3742 U.S.C. § 12102(2)(A).
- 38154 Cong. Rec. S8346 (daily ed. Sept. 11, 2008).
- 3942 U.S.C. § 12102(2)(B).
- 40154 Cong. Rec. S8346 (daily ed. Sept. 11, 2008).
- 4142 U.S.C. § 12102(3)(B).
- 42154 Cong. Rec. S8346 (daily ed. Sept 11, 2008).
- 4342 U.S.C. § 12201(h).
- 44154 Cong. Rec. S8347 (daily ed. Sept 11, 2008).
- 45See 29 C.F.R. § 1630.2(j).
- 4629 C.F.R. § 1630.2(i)(2) (major life activity not demanding); 29 C.F.R. § 1630.2(j)(1)(i) (substantially limits not demanding).
- 4742 U.S.C. § 12102 (4)(A).
- 4829 C.F.R. § 1630.2(j)(1)(iii).
- 4929 C.F.R. § 1630.2(j)(1)(ii).
- 5029 C.F.R. § 1630.2(j)(1)(v).
- 5129 C.F.R. § 1630.2(j)(3)(ii).
- 5229 C.F.R. § 1630.2(j)(3)(iii).
- 53To assess how courts are handling plaintiffs’ contentions of actual disability based on a substantial limitation of a major bodily function, we searched Westlaw for (disability & ADAAA & “major bodily function” & “major life activity”). Our search initially yielded 246 cases through March 15, 2022. The complete data are on file with the authors.
- 54The standards for survival of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) and a motion for summary judgment are different. The former is a pleading requirement and plaintiffs must only allege claims which, if true, would be sufficient to support the case. The latter is an evidentiary standard, and the plaintiff must put forth evidence sufficient to support their prima facie case and to rebut defendant’s assertion of legitimate non-discriminatory reasons for their actions. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002). Their import for the plaintiff is the same, however: a plaintiff who loses on either basis because they have not met the standard applied to an assertion of one of the prongs of disability has lost their claim to anti-discrimination without being able to advance any evidence of what actually happened. For the most part in what follows, therefore, we will not distinguish between these two different ways in which the plaintiff can lose at preliminary stages in the case.
- 55See Neri v. Bd. of Educ., 860 Fed. App’x 556 (10th Cir. 2021).
- 56Id. at 563.
- 57Id.
- 58Scavetta v. Dillon Co., Inc., 569 Fed. App’x 622, 625 (10th Cir. 2014). See also Felkins v. City of Lakewood, 774 F.3d 647, 651 (10th Cir. 2014) (concluding that expert medical testimony about the causal effects of avascular necrosis on circulatory function necessary to show actual disability).
- 59E.g., Bowers v. Netsmart Techs. Inc., 2021 WL 2104985 (D. Kan. 2021) (requiring additional evidence to show that diabetes affected major life activities of sleeping and working); Tygrett v. Denver Water, 2020 WL 6873953 (D. Colo. Nov. 23, 2020) (finding medical records referencing limits on lifting barely sufficient to make an individualized showing that the plaintiffs’ back injury substantially limiting in comparison to the general population); EEOC v. UPS Ground Freight, Inc., 2020 WL 1984293 (D. Kan. Apr. 27 2020) (not reported) (only considering whether plaintiff was regarded as disabled because he had recovered from the stroke that caused muscular weakness). But see Angell v. Fairmount Fire Protection Dist., 907 F. Supp. 2d 1242 (D. Colo. 2012) (finding cancer substantially limited major life activity of normal cell growth).
- 60Betances v. MetroPlus Health Plan, Inc., No. 20-CV-2967 (JGK), 2021 WL 2653363, at *4–5 (S.D.N.Y. July 7, 2021).
- 61Larnard v. McDonough, No. 6:17-CV-06257 EAW, 2022 WL 31505, at *6 (W.D.N.Y. Jan. 4, 2022) (fear of flying); Oyer v. N.Y. State, No. 1:19-CV-01201 EAW, 2020 WL 5642186, at *7 (W.D.N.Y. Sept. 22, 2020) (missing work); Birnbach v. Americares Found. Inc., No. 3:19-CV-01328 (VLB), 2021 WL 4263361, at *10 (D. Conn. Sept. 18, 2021) (finding impairments of ADHD, dyslexia, and auditory processing disorder insufficient to show substantial limit in major life activities of reading, learning, concentrating, thinking, and communicating with others without more evidence, although that evidence could be non-medical); Pineda v. ESPN, Inc., No. 3:18-CV-325 (MPS), 2018 WL 5268123, at *4 (D. Conn. Oct. 23, 2018) (describing need for specific evidence of how rape related PTSD causes limits in a major life activity); Martinsky v. City of Bridgeport, 814 F. Supp. 2d 130, 143 (D. Conn. 2011), aff’d, 504 F. App’x 43 (2d Cir. 2012) (finding anxiety disorder debilitating to the point of withdrawing to the bathroom during work and requiring hospitalization insufficient to survive summary judgment as substantially limiting a major life activity).
- 62Martinsky, 814 F. Supp. 2d at 143.
- 63Robles v. Medisys Health Network, Inc., No. 19-CV-6651 (ARR), 2020 WL 3403191, at *11 (E.D.N.Y. June 19, 2020).
- 64Zako v. Encompass Digit. Media, Inc., No. 3:19-CV-844 (MPS), 2020 WL 3542323, at *8 (D. Conn. June 30, 2020).
- 65Shine v. N.Y.C. Hous. Auth., No. 19-CV-04347 (RA), 2020 WL 5604048, at *7 (S.D.N.Y. Sept. 18, 2020) (but similar symptoms without the prescribed mechanical support would not suffice).
- 66Barlia v. MWI Veterinary Supply, Inc., 721 Fed. App’x 439, 445–46 (6th Cir. 2018) (internal quotation marks omitted).
- 67Id. at 447; see also Peltier v. John Deere Co., No. 3:20-CV-435, 2022 WL 424882, at *5 (E.D. Tenn. Jan. 14, 2022) (finding diagnoses of diabetes alone insufficient to show substantial limitation of major life activity but plaintiff survived summary judgment on actual disability with evidence that he is insulin dependent, his diabetes was not always under control, and he had a pending appointment with endocrinology to see if an insulin pump would be appropriate).
- 68McGriff v. Beavercreek City Sch. Dist., No. 3:18-CV-372, 2021 WL 2401921, at *8 (S.D. Ohio June 11, 2021).
- 69Swanton v. Wyndham Vacation Resorts, Inc., No. 3:20-CV-00480, 2021 WL 5744708, at *16 (M.D. Tenn. Dec. 1, 2021).
- 70McGonegle v. Select Comfort Retail Corp., No. 1:19-CV-442, 2021 2021 WL 229038, at *8 (S.D. Ohio Jan. 22, 2021).
- 71Alston v. Park Pleasant, 679 Fed. App’x 169, 172 (3d Cir. 2017) (quoting 29 C.F.R. § 1630.2(j)(3)(ii)).
- 72Marx v. Arendosh Heating & Cooling, Inc., No. 2:20-CV-00338, 2020 WL 7425275 at *4 (W.D. Pa. Dec. 18, 2020).
- 73Doe v. Triangle Doughnuts, LLC, 472 F. Supp. 3d 115, 135 (E.D. Pa. 2020) (expressing skepticism about the sufficiency of the evidence).
- 74Weber v. Don Longo, Inc., No. CV 15-2406 (KM)(MAH), 2018 WL 1135333, at *12 (D.N.J. Mar. 2, 2018).
- 75Howard v. Pa. Dep’t of Pub. Welfare, No. CIV.A. 11-1938, 2013 WL 102662, at *11 (E.D. Pa. Jan. 9, 2013) (not reported).
- 76Id.
- 77Santee v. Lehigh Valley Health Network, Inc., No. CIV.A. 13-3774, 2013 WL 6697865, at *5 (E.D. Pa. Dec. 19, 2013); see also Kravits v. Shinseki, No. CIV.A. 10-861, 2012 WL 604169, at *6 (W.D. Pa. Feb. 24, 2012) (holding that plaintiff survived summary judgment on actual disability by alleging that sleep apnea interfered with major life activity of sleeping; court did not address claim that fibromyalgia substantially limited major life activities); Geronimo v. Pottsville Ford, No. 3:20-CV-02145, 2021 W.L. 418629, at *4 (M.D. Pa. Sept. 14, 2021) (giving plaintiff the benefit of doubt that asthma substantially limits the life activity of breathing and dyslexia limits the life activity of reading; even though pleadings lack specificity, plaintiff has provided information beyond the diagnoses).
- 78Miller v. Md. Dep’t of Nat. Res., 813 F. App’x 869, 875–76 (4th Cir. 2020) (per curiam); Miller v. Md. Dep’t of Nat. Res., No. CV GLR-17-2349, 2021 WL 3617214, at *9 (D. Md. Aug. 16, 2021); see also Hice v. Mazzella Lifting Techs., Inc., No. 2:21CV281, 2022 WL 636640, at *6 (E.D. Va. Mar. 4, 2022) (distinguishing initial complaint in Miller because Hice had evidence that his degenerative arthritis caused debilitating pain and limited use of back and legs); Khan v. UNC Health Care Sys., No. 1:20CV977, 2021 WL 4392012, at *5 (M.D.N.C. Sept. 24, 2021) (holding that non-alcoholic steatohepatitis, ulcerative colitis, splenomegaly, hematuria, and kidney stones sufficient to survive summary judgment because they substantially limiting digestive system and bladder function); Granda v. Old Dominion Freight Line, Inc., No. CV 3:19-3294-JMC-KDW, 2021 WL 4596995, at *8 (D.S.C. July 14, 2021), report and recommendation adopted, No. 3:19-CV-03294-JMC, 2021 WL 4472743 (D.S.C. Sept. 30, 2021) (finding it a “close one” but that plaintiff survived summary judgment on actual disability based on inconclusive angiogram, slurred speech and issues with balance); U.S. Equal Emp. Opportunity Comm’n v. CACI Secured Transformations, LLC, No. CV JKB-19-2693, 2021 WL 1840807, at *15 (D. Md. May 7, 2021) (holding that the concussion and brain aneurism causing chronic headaches and difficulty with concentration, sensitivity to light and sound, nausea, dizziness substantially limited life activities of concentrating and thinking and neurological and brain functions as a matter of law).
- 79Patton v. Shulkin, No. 7:16-CV-00250, 2018 WL 1321589, at *7 (W.D. Va. Mar. 14, 2018).
- 80Steinhilber v. Yanfeng US Auto. Interiors I, LLC, No. 6:18-CV-2966-TMC-KFM, 2020 WL 6219421, at *11 (D.S.C. May 11, 2020), report and recommendation adopted sub nom. Steinhilber v. Yanfeng US Auto. Interiors Sys. I, LLC, No. 6:18-CV-2966-TMC, 2020 WL 4915568 (D.S.C. Aug. 21, 2020), appeal dismissed, No. 20-2012, 2021 WL 1113204 (4th Cir. Jan. 6, 2021).
- 81Williams v. Tarrant Cnty. Coll. Dist., 717 F. App’x 440, 449 (5th Cir. 2018).
- 82Id. at 448 (referencing 29 C.F.R. § 1630.2(j)(1)(v)).
- 83Equal Emp. Opportunity Comm’n v. K&L Auto Crushers, LLC, No. 620-CV-00455-JCB-JDL, 2021 WL 391313, at *6 (E.D. Tex. Feb. 1, 2021), report and recommendation adopted, No. 6:20-CV-00455, 2021 WL 742875 (E.D. Tex. Feb. 25, 2021); Oncale v. CASA of Terrebonne Par., Inc., No. CV 19-14760, 2020 WL 3469838, at *6 (E.D. La. June 25, 2020); Equal Emp. Opportunity Comm’n v. Mid S. Extrusion Inc., 341 F. Supp. 3d 653, 660 (W.D. La. 2018).
- 84McKinney v. Sheriffs Off. Rapides Par., No. 1:19-CV-01339, 2021 WL 1083979, at *6 (W.D. La. Mar. 19, 2021).
- 85Gonzalez v. Tex. Health & Hum. Servs. Comm’n, No. 5:13-CV-183-DAE, 2014 WL 6606629, at *8 (W.D. Tex. Nov. 19, 2014).
- 86Mid S. Extrusion, 341 F. Supp. 3d at 660.
- 87Rodriguez v. Dollar Gen. Corp., No. SA-18-CV-00713-JKP, 2020 WL 4434932, at *5 (W.D. Tex. July 30, 2020).
- 88Mulcahy v. Cook Cnty., No. 17 C 8235, 2020 WL 6940982 at *12 (N.D. Ill. Nov. 25, 2020).
- 89Hoffman v. Carefirst, 737 F. Supp. 2d 976, 985 (N.D. Ind. 2010).
- 90Monroe v. Indiana, No. 1:14-CV-00252-SEB-DML, 2016 WL 1270202, at *8 (S.D. Ind. Mar. 31, 2016).
- 91Stevens v. Ill. Dep’t of Corr., No. 1:12-CV-01419-SLD-TSH, 2015 WL 5686615, at *9 (C.D. Ill. Sept. 28, 2015).
- 92Wirey v. Richland Comty. Coll., 913 F. Supp. 2d 633, 641–42 (C.D. Ill. 2012).
- 93Grive v. Clark Cnty., No. 2:17-CV-03109-JAD-VCF, 2019 WL 12875432, at *7 (D. Nev. Dec. 2, 2019).
- 94Dentice v. Farmers Ins. Exch., No. 10-C-113, 2012 WL 2504046, at *11 (E.D. Wis. June 28, 2012).
- 95Jackson v. Union Pac. R.R., No. 4:19-CV-00069-RGE-RAW, 2021 WL 1726895, at *14 (S.D. Iowa Mar. 29, 2021), appeal filed.
- 96Torres v. Weigel Broad. Co., 852 F. Supp. 2d 1106, 1112 (E.D. Wis. 2012).
- 97Felix v. Key Largo Mgmt. Corp., No. 21-10381, 2021 WL 5037570, at *3 (11th Cir. Oct. 29, 2021) (per curiam).
- 98Mazzeo v. Color Resols. Int’l, LLC, 746 F.3d 1264, 1268 (11th Cir. 2014).
- 99Lewis v. City of Union City, 934 F.3d 1169, 1181 (11th Cir. 2019).
- 100Callahan v. Emory Healthcare, Inc., No. 1:18-CV-4856-WMR-JSA, 2021 WL 2483160, at *18 (N.D. Ga. Jan. 7, 2021), report and recommendation adopted, No. 1:18-CV-04856-WMR, 2021 WL 732352 (N.D. Ga. Feb. 10, 2021), aff’d, No. 21-10541, 2021 WL 4461587 (11th Cir. Sept. 29, 2021).
- 101Adams v. Crestwood Med. Ctr., 504 F. Supp. 3d 1263, 1284 (N.D. Ala. 2020).
- 102Questions and Answers on Mifeprex, U.S. Food & Drug Admin., (Dec. 16, 2021), https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/questions-and-answers-mifeprex[https://perma.cc/FRG3-QGEW].
- 103OCR Provides Technical Assistance to Ensure Crisis Standards of Care Protect Against Age and Disability Discrimination, U.S. Dep’t of Health & Hum. Services (Jan. 14, 2021), https://www.hhs.gov/about/news/2021/01/14/ocr-provides-technical-assistance-ensure-crisis-standards-of-care-protect-against-age-disability-discrimination.html[https://perma.cc/XJW9-4NBN].
- 104Emergency Medical Treatment and Labor Act (EMTALA) Requirements and Implications Related to COVID-19 (Revised), Ctrs. for Medicare & Medicaid Servs. (March 30, 2020), https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/emergency-medical-treatment-and-labor-act-emtala-requirements-and-implications-related-covid19[https://perma.cc/D3AV-HFKN].
- 105Off. for Civ. Rights, Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557, U.S. Dep’t of Health & Hum. Servs. (July 26, 2021), https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-covid-disability/index.html[https://perma.cc/S38D-7CX8].
- 106What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Emp. Opportunity Comm’n (Jul. 12, 2022), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws [https://perma.cc/G6NH-L4DU].
- 107Off. for Civ. Rights, supra note NOTEREF _Ref102387981 \h 105 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300380037003900380031000000 .
- 10842 U.S.C. §§ 12131–12134.
- 10942 U.S.C. §§ 12181–12189.
- 11029 U.S.C. § 794.
- 11142 U.S.C. § 18116(a).
- 11242 U.S.C. § 12102(1).
- 113Off. for Civ. Rights, supra note NOTEREF _Ref102387981 \h 105 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300380037003900380031000000 .
- 114Id.
- 11542 U.S.C. § 12102(2)(B).
- 116Off. for Civ. Rights, supra note NOTEREF _Ref102387981 \h 105 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300380037003900380031000000 .
- 117Id.
- 118U.S. Equal Emp. Opportunity Comm’n, supra note NOTEREF _Ref102389127 \h 106 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300380039003100320037000000 .
- 119Id.
- 12042 U.S.C. § 12112(b)(5); 42 U.S.C. § 12111(10) (defining “undue hardship”).
- 121U.S. Equal Emp. Opportunity Comm’n, supra note NOTEREF _Ref102389127 \h 106 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300380039003100320037000000 .
- 122Id.
- 123Id.
- 12442 U.S.C. § 12112(b)(4).
- 125Den Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997); Questions & Answers: Association Provision of the ADA, U.S. Equal Emp. Opportunity Comm’n (Oct. 17, 2005), https://www.eeoc.gov/laws/guidance/questions-answers-association-provision-ada#:~:text=What%20is%20the%20association%20provision,person%20with%20a%20known%20disability[https://perma.cc/Q7AS-PF9B].
- 126U.S. Equal Emp. Opportunity Comm’n, supra note NOTEREF _Ref102389127 \h 106 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100300032003300380039003100320037000000 .
- 127Id.
- 128See supra notes 55–65 and accompanying text.
- 129See infra Part III.
- 130See discussion infra Part V.
- 131Baum v. Dunmire Prop. Mgmt., Inc., No. 21-CV-00964-CMA-NYW, 2022 WL 889097, at *5 (D. Colo. Mar. 25, 2022).
- 132Id.
- 133Id. (interpreting both the guidance and the “transitory and minor” statutory language).
- 134Anderson v. L. Keeley Construction, 2022 W.L. 3585596 (E.D. Mo. Aug. 22, 2022).
- 135Earl v. Good Samaritan Hosp. of Suffern, No. 20 CV 3119 (NSR), 2021 WL 4462413, at *6 (S.D.N.Y. Sept. 28, 2021); see also Williams v. City of New York, No. 20-CV-8622 (JPO), 2022 WL 976966, at *2 (S.D.N.Y. Mar. 31, 2022) (dismissing claim of actual disability when plaintiff did not allege facts regarding his COVID symptoms or what major life activities he could not perform as a result), Earl v. Good Samaritan Hosp. of Suffern NY, No. 20 CIV. 3119 (NSR), 2022 WL 4087597 (S.D.N.Y. Sept. 6, 2022) (plaintiff needed to be able to argue that his condition substantially limited his major life activities at the time he was denied the accommodation and cannot use later long COVID symptoms to show this).
- 136Brown v. Roanoke Rehab. & Healthcare Ctr., No. 3:21-CV-00590-RAH, 2022 WL 532936, at *1 (M.D. Ala. Feb. 22, 2022) (citing OSHA guidance).
- 137Id. at *4 (citing Champion v. Mannington Mills, Inc., 538 F. Supp. 3d 1344 (M.D. Ga. 2021) and Payne v. Woods Services, Inc., 520 F. Supp. 3d 670 (E.D. Pa. 2021); see also Cupi v. Carle Bromenn Med. Ctr., No. 1:21-CV-01286, 2022 WL 808209, at *2 (C.D. Ill. Mar. 16, 2022).
- 138Champion, 538 F. Supp. at 1349.
- 139Laguerre v. Nat’l Grid USA, No. 20-3901-CV, 2022 WL 728819, at *1 (2d Cir. Mar. 11, 2022).
- 140Arazi v. Cohen Bros. Realty Corp., No. 1:20-CV-8837-GHW, 2022 WL 912940, at *8 (S.D.N.Y. Mar. 28, 2022).
- 141DiFranco v. City of Chicago, No. 21 C 1600, 2022 WL 672746, at *4 (N.D. Ill. Mar. 7, 2022) (allowing suit for failure to accommodate to survive motion to dismiss when plaintiff was at increased COVID risk due to his underlying health conditions).
- 142Hermes v. Okla. Arthritis Ctr., No. CIV-20-871-SLP, 2021 WL 3540322, at *4 (W.D. Okla. June 8, 2021).
- 143Frederick v. Allor Mfg., Inc., No. 2:20-CV-12790-TGB-RSW, 2022 WL 598746, at *5 (E.D. Mich. Feb. 28, 2022).
- 144Russo v. Moore, Ingram, Johnson, & Steele, LLP, 2022 WL 1787102, (M.D. Tenn. 2022), at *13.
- 145Frederick, 2022 WL 598746, at *4.
- 146Id. (distinguishing Silver v. City of Alexandria, 470 F. Supp. 3d 616, 622 (W.D. La. 2020)).
- 147Peeples v. Clinical Support Options, Inc., 487 F. Supp. 3d 56, 63 (D. Mass. 2020).
- 148Peeples, 487 F. Supp. 3d at 63; see also Silver, 470 F. Supp. 3d at 621–22 (judging disability by the totality of the circumstances under COVID); Valentine v. Collier, No. 4:20-CV-1115, 2020 WL 3625730, at *2 (S.D. Tex. July 2, 2020).
- 149Peeples, 487 F. Supp. 3d at 63.
- 15042 U.S.C. § 12201(h).
- 151See Alvarado v. ValCap Grp., LLC, No. 3:21-CV-1830-D, 2022 WL 19686, at *1 (N.D. Tex. Jan. 3, 2022).
- 152Id. at *1.
- 153Id.
- 154Id. at *7.
- 155Id.
- 156Matias v. Terrapin House, Inc., No. 5:21-CV-02288, 2021 WL 4206759, at *4 (E.D. Pa. Sept. 16, 2021); see also Brown v. Roanoke Rehab. & Healthcare Ctr., No. 3:21-CV-00590-RAH, 2022 WL 532936, at *6 (E.D. Ala. Feb. 22, 2022) (finding that an employee could plead regarded as discrimination when she informed her employer of ongoing severe symptoms of COVID).
- 157Matias, 2021 WL 4206759, at *4.
- 158We wonder if these rulings will create incentives, or at least signals, for employees with mild COVID cases, including omicron and BA2 variants, to return to work and infect others despite their sensible misgivings.
- 159Booth v. GTE Fed. Credit Union, No. 8:21-CV-1509-KKM-JSS, 2021 WL 5416690, at *5 (M.D. Fla. Nov. 20, 2021); see also Guerrero v. Summit Aerospace, Inc., No. 21-CV-24006, 2022 WL 579499, at *4 (S.D. Fla. Feb. 25, 2022) (declining to decide whether COVID is transitory and minor at the summary judgment stage when plaintiff fired two weeks after returning from a quarantine due to COVID exposure).
- 160Fortun v. iAero Thrust LLC., No. 21-CV-23348, 2022 WL 446209, at *1 (S.D. Fla. Feb. 14, 2022).
- 161Id. at *5.
- 162Kim v. Friends Tek, LLC, No. 1:20-CV-4276-AT-JSA, 2020 WL 11885523, at *8 (N.D. Ga. Dec. 21, 2020), report and recommendation adopted, No. 1:20-CV-4276-AT-JSA, 2021 WL 4839090 (N.D. Ga. Jan. 8, 2021).
- 163Id.
- 164Burbach v. Arconic Corp., No. 2:20-CV-00723-CRE, 2021 WL 4306244, at *7 (W.D. Pa. Sept. 22, 2021).
- 165Payne v. Woods Servs., Inc., 520 F. Supp. 3d 670, 679 (E.D. Pa. 2021) (plaintiff’s claim for interference with FMLA leave did survive motion to dismiss, however).
- 166Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002).
- 167Computer-Related Repetitive Stress Injuries, Johns Hopkins, https://www.hopkinsallchildrens.org/Patients-Families/Health-Library/HealthDocNew/Computer-Related-Repetitive-Stress-Injuries[https://perma.cc/M6X2-5RJU].
- 168Rachel L. Levine, Addressing the Long-term Effects of COVID-19, JAMA 328(9), 823–24 (2022), https://jamanetwork.com/journals/jama/fullarticle/2795139[https://perma.cc/NYE9-ZS2C].
- 169Antoni Sisó-Almariall et al., Long Covid-19: Proposed Primary Care Clinical Guidelines for Diagnosis and Disease Management, 18 Int’l. J. Env’t Rsch. & Pub. Health 4350 (2021).
- 170Dorothy Wall, The Importance of Listening in Treating Invisible Illness and Long-Haul COVID-19, 23 Am. Med. Ass’n J. Ethics 590 (2021).