State officials recently announced that they have no plans to shoot off fireworks and break open the campaign celebrating the upcoming second anniversary of the coronavirus pandemic (just a little humor to lighten things up). As this date approaches, it’s becoming apparent that the P-word might no longer be appropriate. A pandemic is usually an epidemic that sweeps over the world or a specific geographical area and then goes away, like the Spanish Flu pandemic. Instead, COVID-19 might be endemic. Conditions are bad for a while, and then they improve, and then they worsen, and then, well, you get the point.
Already, disability advocates are pushing for changes to the laws which would recognize long COVID as a disabling condition. As outlined below, this disease can significantly impair employment prospects and thus be “disabling” from that perspective. One of the big questions is whether Long COVID lasts long enough to be disabling and, on a related note, if medication can control these symptoms.
The underlying issue here is that disability science, like medical science, is always evolving. At the Heermans Social Security Disability Law Firm, our SSI disability lawyers in Memphis and the larger Mid-south area work hard to stay abreast of these changes. We go the extra mile as well. We strive to be the agents of change which benefit disability victims. We advocate for these individuals in the courthouse and in the statehouse.
What is Long COVID?
You may be sorry you asked this question. The medical term is Post-Acute Sequelae of SARS-CoV-2 infection. It’s usually PASC in medical charts. The flu-like physical symptoms, such as coughing, sneezing, and trouble breathing, are sometimes apparent in Long COVID. However, this may seem more like a brain injury than the flu. Some mental and other such symptoms include:
- Trouble concentrating and making decisions, largely because of the cumulative effect of lesser symptoms (“COVID fog”),
- Muscle weakness,
- Anxiety, and
- Dizziness or loss of balance, especially when sitting, standing, or climbing stairs.
The aforementioned brain injury comparison might be apt. There is considerable evidence that influenza causes neurodegeneration.
In the early days of the pandemic, many doctors noted that Long COVID “could” last “up to” a year. That’s significant because twelve months is usually the current requirement for SSDI benefits. However, Long COVID might or might not be disabling for this entire period, especially if the patient has been vaccinated. There may also be additional future questions and qualifications if the patient has or has not been vaccinated and/or received booster shots. Time will tell.
Is Long COVID a Disability?
According to Section 404.1505 of the Code of Federal Regulations, a disability is “the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” Based on what we know about long COVID from the above discussion, is it “disabling” under federal law? Maybe.
As a preliminary matter, there is a persistent myth that disabled is synonymous with bedridden. That’s not true. Many disabled individuals function very well for short periods in non-stressful environments. But functioning for eight hours in a fast-paced, physically demanding or pressurized environment is a different story.
Now, let’s break down the specifics, starting with substantial gainful employment (SGE). Basically, SGE means the victim can work enough hours at a job that pays enough money to live above the poverty line. A condition like Long COVID could affect either the ability to work a number of hours or simply find a job that pays with their work ability to make enough money to keep above the federal poverty level. Perhaps the victim cannot work, especially on a bad day. Or, perhaps the mental impacts of Long COVID mean that the victim can only work at a part-time job like parking lot attendant or school crossing guard or store greeter.
Long COVID is definitely a medically recognized condition. If there are diagnosis issues, an SSA law firm will recommend you seek a qualified physician to evaluate your condition.
The big issue is the monthly/fatality requirement. If a victim suffers from a laundry list of Long COVID symptoms, the condition is almost certainly disabling. But what if only one or two symptoms are apparent? Or, what if they aren’t consistent (e.g. Sam often gets mildly depressed but he can snap out of it if he tries hard enough)? Perhaps most importantly, how does lack of a vaccination shot, which greatly reduces short COVID symptoms, affect Long COVID symptoms? And what about those who received their Covid shots and still get the virus? What will be the implications of these infected individuals? Time again, will tell.
Must Employers Offer Long COVID Accommodations?
This area technically is an Americans with Disabilities Act issue as opposed to a Social Security issue. But it’s an issue we want to do our best to address in this post.
The Department of Health and Human Services has stated that Long COVID is a protected condition under the ADA. Therefore, employers must offer reasonable accommodations to their employees who suffer from Long COVID. They must also make reasonable accommodations for candidates during the interview process. These accommodations are available if the person otherwise is capable of performing all essential job skills.
Reasonable accommodations in this area could include an office on the first floor, longer time to complete tasks, or slightly longer breaks. Working from home could be a reasonable accommodation under the ADA, but the law in this area is rather complex. So far, work-from-home has been the most popular response to the pandemic but as more return to the onsite workforce, businesses may be forced to implement accommodations that were not a part of the pre-pandemic work culture. Once again, time will tell.
What’s the Social Security Disability Benefits Process for Long COVID?
The disability determination process for Long COVID is the same as the standard disability process. Long COVID is not a fast-track condition in which benefits eligibility is presumed. At least, it has not attained that status as of now.
There is so much uncertainty about Long COVID as a disabling condition, as outlined above, that there is almost no chance to obtain disability benefits during an initial review. Sadly for disability victims, a number of them give up at this point. They either abandon their claims altogether or settle for less resources than may be available. If you have been denied a disability claim, you can use our FREE Heermans Social Security Disability Law Firm Form for an evaluation.
At a subsequent appeal hearing, the environment is much different. Usually, thorough preparation by your attorney is the key to a successful outcome. This legal preparation often involves gathering additional evidence from medical and vocational experts which clearly set forth the petition’s disability. An Administrative Law Judge presides over the hearing itself. The ALJ not only reviews the evidence in the case. The ALJ also considers legal arguments.
Because of this changed environment, Heermans disability attorneys are often able to resolve these matters out of court prior to the hearing. Our specialized SSA lawyers do our best to know what is coming next in the appeal process and securely represent our clients. For more information about COVID-19/Long Covid and other disabling conditions, contact the SSI lawyers near you at the Heermans Social Security Disability Law Firm. Give us a call or text 24/7 at (901) 244-0057.
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