Since the onset of the pandemic, many employees have been forced to cease working due to COVID-19-related disabilities.
While most people who become infected with COVID-19 fully recover in just a few weeks, some experience symptoms that persist well beyond this timeframe. This chronic condition has come to be known as "long COVID," and is most commonly associated with symptoms of fatigue, brain fog, difficulty breathing, and headaches.
While it’s unclear exactly how many people experience long COVID, a recent study by the Karolinska Institutet of Sweden found that eight months after mild COVID-19, 1 of every 10 people still has at least one moderate to severe symptom perceived to have a negative impact on their work, social, or home life.
This means many COVID-19 “long-haulers” will find it difficult to work, leading them to file claims for disability benefits under their employer’s group disability plan governed by the Employee Retirement Income Security Act of 1974 (ERISA).
Denial of Claims from Insufficient Evidence of Illness
Many claimants may be surprised to find their claims denied due to insufficient evidence of an illness. Plan administrators (typically, the insurance company) find support for their denials in the subjective nature of long COVID’s symptoms. Indeed, there is no objective proof to show someone is tired or in pain.
This matter is complicated further by the insufficient testing available in the early stages of the pandemic, leaving affected individuals without a positive COVID-19 test documented in their medical records.
After a claim for disability insurance benefits has been denied, the claimant must follow the plan’s administrative appeal process before pursuing their claim in court.
Insight from Subjective Disability Cases
While case law concerning long COVID-19 disability claims is lacking (for now), claimants and attorneys can look to other cases involving similar disabilities to help formulate arguments on appeal.
For example, disabilities caused by fibromyalgia or Chronic Fatigue Syndrome (CFS) likewise stem solely from a claimant’s subjective symptoms. In sum, these cases stand for the proposition that insurers generally cannot deny disability claims simply because the claimant’s symptoms are subjective.1
Moreover, there’s likely a pathway forward even when the plan explicitly requires claimants submit “objective medical evidence” of their disability. While the diagnoses of CFS, fibromyalgia, and long COVID may not lend themselves to objective clinical findings, the physical limitations caused by the symptoms of such conditions do lend themselves to objective analysis.2
For example, though there’s no objective test for the presence of fatigue, the extent to which fatigue may impact the claimant’s cognition may be objectively proven with neurocognitive testing.
Inability to Work due to Underlying Medical Conditions
However, the complexity surrounding COVID-19-related ERISA disability benefits claims does not end with COVID long-haulers. Rather, even employees who have never contracted COVID-19 have been forced to cease working as a result of the pandemic.
This specifically includes individuals with serious underlying medical conditions, such as chronic lung disease or a weakened immune system, who are more likely to become severely ill from COVID-19 and who, the CDC advises, should avoid indoor spaces and maintain at least six feet of distance from others.
In light of these risks and recommendations, many doctors had advised patients with serious underlying medical conditions to avoid working in a public setting. For jobs that inherently require public interaction, this medical restriction renders the individual unable to perform their job duties, thus resulting in their application for disability benefits.
Insurers have been quick to deny such claims, asserting that the risk of future disability cannot constitute current disability.
Insight from ‘Risk of Relapse’ Cases
While courts have not yet decided whether the risk of contracting severe COVID-19 can constitute a disability, we can glean insight from the “risk of relapse” cases. Although the circuits are split, some agree the risk of future disability may constitute a current disability, depending on severity of risk, medical support for the risk, and plan language.
For example, the First Circuit concluded in Colby v. Union Sec. Ins. Co.3 that “a risk of relapse into substance dependence … can swell to so significant a level as to constitute a current disability.” That case concerned an anesthesiologist who had been self-administering opioids, resulting in addiction. While the anesthesiologist was approved for disability benefits during her in-patient stay at a residential treatment facility, the insurance company denied her claim thereafter, noting “a risk for relapse is not the same as a current disability.” Given the plan did not include a categorical exclusion for risk of relapse, the court disagreed.
Importantly, risk of relapse cases reach beyond disability claims based on substance use disorders. In Lasser v. Reliance Standard Life Ins. Co.,4 the Third Circuit considered whether a physician was disabled based on the fact that the stressful nature of his job increased his risk of heart attack. In the interest of preventing a heart attack, the physician’s doctor advised him to reduce his work stress by ceasing to perform emergency surgeries and being on call overnight. Because these duties were considered material to the physician’s occupation, the court found that the physician was disabled under the terms of his policy. In other words, the physician’s risk of future disability (i.e., risk of suffering a heart attack) constituted a current disability.
The Fourth Circuit, however, has limited the extent to which a risk of disability can constitute a current disability. The plaintiff in Stanford v. Cont'l Cas. Co.5 worked as a nurse anesthetist and began self-administering fentanyl, which resulted in a debilitating substance use disorder.
The claimant’s attempts to return to work repeatedly triggered his relapse, and his doctors explained that he would remain at risk of a relapse if exposed to fentanyl. Despite this, the insurance company denied his claim for benefits, noting that "the policy does not cover potential risk."
The court agreed with the insurance company by distinguishing cases involving the risk of physical disability and those involving the risk of substance use disability. Rooted in a more traditional understanding of substance use disorders, the court reasoned:
A doctor with a heart condition who enters a high-stress environment like an operating room ‘risks relapse’ in the sense that the performance of his job duties may cause a heart attack. But an anesthetist with a drug addiction who enters an environment where drugs are readily available ‘risks relapse’ only in the sense that the ready availability of drugs increases his temptation to resume his drug use. Whether he succumbs to that temptation remains his choice; the heart-attack prone doctor has no such choice.6
In sum, the court held that the insurance company’s determination that the risk of relapsing into addiction did not constitute a disability under the terms of the benefit plan was reasonable.
These risk of relapse cases would suggest that the risk of disability from contracting COVID-19 may constitute a current disability for purposes of claiming ERISA disability benefits, provided such risk stems from an underlying physical condition and provided the governing plan does not categorically exclude such claims.
Conclusion: More Litigation Expected
COVID-19-related disability claims can stem from disabilities due to an actual COVID-19 infection or the potential for such an infection.
Since the national emergency for COVID-19 began on March 1, 2020 – and given it can easily take claimants a year or more to exhaust the administrative appeal remedies, which is a prerequisite to filing suit – we are on the cusp of seeing these types of ERISA disability benefit claims litigated with increasing frequency.
While such cases face unique challenges under the plan administrators’ and insurance companies’ scrutiny, subjective disability cases and risk of relapse cases may pave the way forward for claimants who have lost their livelihood due to the pandemic.
This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.
1 See, e.g., Hawkins v. First Union Cor. Long-Term Disability Plan, 326 F.3d 914 (7th Cir. 2003).
2 See Williams v. Aetna Life Ins. Co., 509 F.3d 317, 322-23 (7th Cir. 2007) (“However, [a] distinction exists ... between the amount of fatigue or pain an individual experiences, which ... is entirely subjective, and how much an individual’s degree of pain or fatigue limits his functional capabilities, which can be objectively measured.”).
3 Colby v. Union Sec. Ins. Co., 705 F.3d 58 (1st Cir. 2013).
4 Lasser v. Reliance Standard Life Ins. Co., 344 F.3d 381 (3d Cir. 2003).
5 Stanford v. Cont'l Cas. Co., 514 F.3d 354 (4th Cir. 2008).
6 Id. at 358.