Long Covid Bias Claims Face Steep Odds Before Reaching US Courts

US Federal courts have rarely ruled on whether long Covid qualifies as a disability protected by workplace anti-discrimination laws, even as the condition remains more prevalent than is commonly understood.

 

Courts have handed down only 10 decisions addressing the status of long Covid as a legally protected disability, according to a Bloomberg Law analysis, despite estimates that as many as one in six people who contract Covid-19 develop the sometimes life-altering condition. An estimated 90% of long Covid sufferers experience chronic health problems, including brain fog, fatigue, depression, heart palpitations and difficulty breathing.

 

The scarcity of rulings involving this new and complex illness highlights shortcomings in the legal frameworks and court processes workers rely on to enforce their rights against disability discrimination. It may also say less about how courts decide long Covid cases than about why many of those cases never reach court.

 

“The real issue is the funneling of the cases to begin with, before they’re even filed,” said Angélica Guevara, a law professor at Indiana University. “It’s a lot of people facing that stigma, the internalised ableism, the not wanting to be a burden.”

 

Workers with long Covid often absorb the cost of employers’ failure to provide accommodations rather than challenge a legal system built around standards that may not reflect the experiences of people with less visible disabilities. Some who fear they will not be believed also choose not to bring claims, Guevara said.

 

Bloomberg Law’s analysis focused on federal court rulings on motions seeking to end lawsuits involving alleged workplace discrimination based on the condition, which is also known as post-Covid condition, long-haul Covid and post-acute sequelae of SARS-CoV-2 infection. The research identified fewer than 30 decisions that fitted the criteria, including 10 addressing whether long Covid constituted a disability under the Americans with Disabilities Act (ADA), the Rehabilitation Act or state anti-discrimination laws.

 

The analysis found that workers in three cases cleared the first litigation hurdle in establishing that their long Covid constituted a disability, with their claims surviving employers’ motions to dismiss. Employees were unsuccessful in the other seven decisions for various reasons, including deficiencies in their pleadings and insufficient evidence.

 

Long Covid in Court

 

Federal courts began issuing rulings in long Covid discrimination cases in 2022, following joint guidance from the US Department of Justice and Department of Health and Human Services explaining how the condition could qualify as a disability.

 

As many as 15 million people in the US may be living with long Covid, according to a study published in May.

 

Diagnoses often rely on self-reported symptoms for which there are no objective markers. This partly contributes to the social stigma surrounding the condition, which has also been compounded by the politicisation of Covid-19 itself, disability law scholars said.

 

“Workers with long Covid have been stereotyped as lazy or acting with malaise,” said Joseph Seiner, a law professor at the University of South Carolina.

 

Under most anti-discrimination laws, an individual seeking to establish that a condition constitutes a disability must show that it substantially limits a major life activity.

 

Long Covid can face litigation obstacles because its symptoms may be subjective, episodic and difficult to establish through objective medical evidence. Similar challenges arise with other non-apparent conditions, including chronic fatigue syndrome and arthritis, disability law academics said. Courts can be sceptical of claims based primarily on self-reported symptoms.

 

To establish discrimination, workers must also show that their employer took adverse action against them because of an actual or perceived disability.

 

The 10 decisions addressing long Covid as a disability included claims involving failed or denied accommodation requests, including requests to work remotely. In one case, a nurse alleged that the hospital where he worked effectively forced him to quit after refusing to provide him with a respirator or transfer him to a unit without Covid patients. A court dismissed his lawsuit after finding that he had failed to establish that he experienced long Covid symptoms while employed.

 

The ADA is complex, and many plaintiffs’ lawyers lack the expertise needed to properly plead disability discrimination claims, said Nicole Porter, a professor at William & Mary Law School.

 

Workers alleging discrimination also frequently struggle to find legal representation. This can prevent them from bringing claims or leave them facing the additional challenges of representing themselves, Porter said.

 

That structural barrier was evident in the disability-related decisions: half involved plaintiffs representing themselves, or pro se.

 

Still, the small number of rulings could also indicate that disability laws are working as intended or that strong cases are being settled before reaching trial.

 

The ADA and similar laws require employers to engage with disabled employees to identify “reasonable” accommodations that do not impose an “undue hardship” on the company. Employers may therefore be accommodating workers and resolving disputes outside court, said Wendy Parmet, co-director of Northeastern University’s Center for Health Policy and Law.

 

Courts and the ADA

 

Congress amended the ADA in 2008 to broaden the scope of who could qualify as disabled after courts had narrowed eligibility. The amendment instructed courts to refocus on the ADA’s purpose: eliminating discrimination.

 

Despite those changes, courts still misunderstand this distinction, disability law scholars said.

 

Courts sometimes view their role as determining which individuals are deserving of protection and which are not, or who is genuinely disabled and who is not. But that approach “actually misses the point of the ADA”, said Doron Dorfman, a law professor at Seton Hall University.

 

The central question under the ADA, he said, is whether discrimination occurred, rather than whether a person meets a court’s perception of what constitutes a disability.

 

Determining who is medically or functionally disabled is more closely associated with systems such as Social Security, insurance and welfare programmes, Dorfman said.

 

Courts have issued more decisions in long Covid cases involving disability benefits than workplace discrimination, with workers challenging frequently denied claims.

 

Dorfman said he sees a future in which courts’ treatment of disability discrimination cases improves, or more lawsuits are brought, as biomarkers and technology provide better ways of documenting chronic illnesses. He compared this with the way greater medical evidence has changed how courts approach conditions such as food allergies.

 

“Every time we have a new type of disability there’s a lot of suspicion, and there’s a lot of reluctance to recognise that disability under the law and to allow people to actually talk about the discrimination,” Dorfman said.

 

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