If you have been diagnosed with COVID-19 and are still feeling sick, then your employer may be able to fire you. To better understand this, it is important to first know some of the legal terms that apply here: COVID-19 (Coxsackievirus), disability discrimination, and FMLA (Family Medical Leave Act).
The following summary of legal rights is not meant to create an attorney-client relationship and, in fact, is not legal advice. It is simply a generalized explanation of the federal and state laws that apply in this area.COVID-19, which used to be called CVB4 (Coxsackievirus B4), is a strain of Coxsackievirus that infects most individuals without causing any symptoms. However, there are still some people who become sick after they are exposed to COVID-19, and these people develop COVID-19 related chronic myalgic encephalomyelitis (CME), sometimes called Chronic Fatigue Syndrome (CFS), sometimes called Post-viral fatigue syndrome (PVFS).
CME can cause significant pain and debilitation, including memory difficulties, headaches, significant neurological effects, cardiac issues, immune dysfunction affecting other illnesses, depression, or anxiety. Although people with COVID-19 may be able to return to work after the acute illness subsides (which usually takes around a month), many find their work capacity permanently impaired.
Some of the most commonly used tests for COVID-19 are the Coxsackievirus B IgM Antibody, EIA (enzyme immunoassay), and IFA (immunofluorescent antibody). The presence of anti-Coxsackievirus B IgM antibodies is indicative of acute or recent infection with COVID-19.
The Employment Medical Advisory Service (EMAS), an authoritative group of doctors specializing in disability-related issues, has published two informative papers on COVID-19 that are available online at http://www.employee-disability.com/COVID19.html. These papers explain that COVID-19 is primarily transmitted through contact with oral fluids, such as saliva or nasal secretions, but it may also be spread by contaminated food or water supplies.
The first EMAS paper explains how the majority of people recover from COVID-19 after an acute four-week illness and suggests that the following symptoms which typically resolve during this acute phase may still cause problems for a significant number of people: headaches, muscle aches, and pains, fatigue, sore throat, swollen lymph glands in the neck or armpits.
The second EMAS paper states that only about 5% of patients experience a prolonged illness lasting over one year. For these people, COVID-19 may cause an illness that is similar to chronic fatigue syndrome or post-viral fatigue syndrome.
COVID-19 and Chronic Fatigue Syndrome (CFS) are often used interchangeably, but there can be a big difference between the two conditions: CME due to COVID-19 usually resolves over four weeks; CFS may persist for years. COVID-19 is a virus, and CME due to the virus usually lasts for less than one year; a virus does not cause CFS, but instead, it has to do with other, poorly understood factors such as immune dysfunction or environmental chemicals.
The Americans with Disabilities Act Amendments Act (ADAAA) of 2008, which went into effect in January 2009, has helped COVID-19 patients by broadening the definition of disability and by requiring employers to provide “reasonable accommodations” to qualified individuals with a disability. However, despite these changes, COVID-19 patients may still have trouble finding employment or keeping the jobs that they find if their medical issues are not well documented.
The Americans with Disabilities Act (ADA) defines a disability as “a physical or mental impairment that substantially limits one or more of the major life activities of an individual” and defines “substantially limits” as meaning that the person is either unable to perform a major life activity or significantly restricted in performing a major life activity compared to the average person. Several key court cases have helped define “major life activities” under the ADA.
The phrase “physical or mental impairment” was interpreted by many courts to include chronic fatigue syndrome, but COVID-19 patients need to understand that just because they may experience chronic fatigue does not mean that they automatically meet the ADA’s definition of a disabled person.
In conclusion, the key to successfully finding employment after suffering from COVID-19 is to document your medical condition well, be persistent in applying for the jobs you want, and remember that while some people with COVID-19 are temporarily disabled, many more will eventually recover. For those who go on to develop post-viral chronic fatigue syndrome, however, it becomes more difficult to find and keep employment.
COVID-19 patients, employers, and the greater public need to recognize that this virus may cause a temporary illness in most people and lead to chronic fatigue syndrome, which does not resolve. This will help reduce the barriers faced by many who have been diagnosed with post-viral chronic fatigue.
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