Author
Michael Scullin, MHS, CRC, LRC, CLCP
Michael Scullin, MHS, CRC, LRC, CLCPCertified Rehabilitation Counselor & Certified Life Care Planner

This blog discusses post-COVID-19 syndrome, also known as Long COVID, and raises questions about how it will affect personal injury litigation. It also discusses the impacts of Long COVID on the economy and labor market, and outlines ways employers might accommodate those with Long COVID to keep them in their jobs for the benefit of both the employee and the employer.

What is Long COVID?

As of March 13, 2023, it was estimated that over 103 million people in the United States had contracted the COVID-19 virus.[1] About 24 percent of people who had COVID-19 experienced symptoms for three months or more.[2] Long-term effects of COVID-19 are known as Post-COVID Conditions (PCC) or Long COVID, causing a wide range of symptoms that can last weeks, months, or even years. In some cases of Long COVID, a person’s symptoms may improve or disappear and then return later.[3]

Commonly Reported Long COVID Symptoms:(Not a Comprehensive List): [4]

General symptoms

  • Tiredness or fatigue that interferes with work and activities of daily life

Respiratory and heart symptoms

  • Difficulty breathing or shortness of breath
  • Coughing
  • Chest pain
  • Fast-beating or pounding heart (also known as heart palpitations)

Neurological symptoms

  • Difficulty thinking or concentrating (sometimes called “brain fog”)
  • Headache
  • Sleep problems
  • Dizziness when standing up (lightheadedness)
  • Changes in sense of smell or taste
  • Depression or anxiety

Digestive symptoms

  • Diarrhea
  • Stomach pain

Other symptoms

  • Joint or muscle pain
  • Rash
  • Changes in menstrual cycles

The Impact of Long Covid on the Labor Market

A study was conducted in 2022 by the US Census Bureau to assess the labor market impact and economic burden of Long COVID. At that time, it was estimated that 16 million people, or 8 percent of working-age Americans aged 18-65, had Long COVID.[5] Of those, 2 to 4 million people were unemployed or had left the labor force due to Long COVID. The lost earnings were estimated to be $170 billion per year, or nearly 1 percent of the US gross domestic product.

Another study by the World Economic Forum (WEF) found 25.9 percent of people with Long COVID have had their earnings “impacted” by Long COVID, either through being out of work or having reduced hours. Those who worked reduced hours were working about 25 percent fewer hours than they were before COVID. The WEF estimated about 1.8 percent of the US civilian labor force experienced earnings reductions due to Long COVID. Face-to-face industries including education, transportation, food service, hospitality, and health and social care are still facing persistent labor shortages.[6]

Long COVID and Personal Injury Cases

Liability in most personal injury claims is based on the legal concept of negligence, defined as a failure to behave with the level of care someone of ordinary prudence would have exercised under the same circumstances.[7] Personal injury cases rarely arise from contracting an infectious disease, as it is often difficult to prove the source of exposure and identify a specific action showing a lack of reasonable care by the defendant. Most employees will not have a personal injury claim based on contracting COVID-19 at their workplace, because it is difficult to prove that a specific exposure caused their infection. That said, plaintiffs and defendants should consider how Long COVID may affect liability and damages in personal injury litigation when a plaintiff is diagnosed with Long COVID.

For example, there could be a question about whether the symptoms in a personal injury case were due to the event that is the subject of the case or due to Long COVID. Could Long COVID have kept the person out of work had the event not occurred? Could Long COVID increase their medical expenses, lengthen their recovery time, or intensify their symptoms? If so, how does Long COVID affect liability and damages in a case?

There are still many unanswered questions about how Long COVID will affect lawsuits, particularly when the plaintiff in a personal injury case has Long COVID. Finding the answers to these questions will require further clinical studies and development of case law.

How Employers Can Lessen the Impact of Long COVID

The Department of Labor has classified Long COVID as a disability under the Americans with Disabilities Act (ADA), meaning workers with Long COVID are now eligible for workplace accommodations.[8] Reasonable accommodations are one way employers can potentially lessen the impact of Long COVID on affected employees and on the operations of their business.  On average, it costs a small business about $1,200 to hire and train a new employee, not including trainer/trainee’s time, instructional materials, and loss of productivity until the new employee becomes proficient.[9] Therefore, it may often be more cost effective to provide accommodations for an existing employee, rather than to replace the employee.

An accommodation used during the pandemic was allowing employees to work remotely. Remote work makes jobs more accessible for people with a range of disabilities, including Long COVID. One result of the pandemic is that, while the number of disabled Americans rose 8 percent, the share of disabled Americans participating in the labor force increased by about 13 percent.[10] This is due in part to expanded opportunities to work remotely. Other accommodations employers could offer include longer or more frequent breaks, flexible hours, allowing certain employees, such as cashiers, to sit instead of stand, and allowing shift workers to swap shifts. Accommodations like these may enable employees to keep their jobs instead of being forced to leave the labor force due to Long Covid. For employers that have difficulty finding workers, these types of accommodations may be mutually beneficial.

Another option is for employers to provide paid sick leave. Among the bottom 25 percent of earners, only 52 percent have paid sick leave.[11] If workers cannot stay home from work when they are sick, they will go to work when experiencing symptoms, which will likely increase the spread of COVID-19 and lead to a greater number of Long COVID cases. Employers who do not offer paid sick leave should consider the long-term economic benefits to the business as compared to the direct cost.

There is still much to learn about the medical and socioeconomic impacts of long COVID. However, it is clear a legally and economically successful response by employers requires an open mind and a willingness to experiment to find the best practices for each business.

[1] Center for Disease Control and Prevention, “COVID Data Tracker Weekly Review,” https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html, accessed March 13, 2023.

[2] World Economic Forum, “Long Covid is keeping millions of Americans out of work, new data shows,” https://www.weforum.org/agenda/2022/08/long-covid-work-economy-united-states-health/, accessed March 13, 2023.

[3] Center for Disease Control and Prevention, “About Long COVID or Post-COVID Conditions,” https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects/index.html, accessed March 13, 2023.

[4] Mayo Clinic, “COVID-19: Long-term effects,” https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/coronavirus-long-term-effects/art-20490351, accessed March 13, 2023.

[5] Center for Disease Control and Prevention, National Center for Health Statistics, “Long COVID Household Pulse Survey,” https://www.cdc.gov/nchs/covid19/pulse/long-covid.htm#technical_notes, accessed March 29, 2023.

[6] World Economic Forum, “Long Covid is keeping millions of Americans out of work, new data shows,” https://www.weforum.org/agenda/2022/08/long-covid-work-economy-united-states-health/, accessed March 13, 2023.

[7] Cornell Law School, “Negligence,” https://www.law.cornell.edu/wex/negligence, accessed March 14, 2023.

[8] U.S. Department of Labor Blog, “Workers With Long COVID-19: You May Be Entitled to Workplace Accommodations,” https://blog.dol.gov/2021/07/06/workers-with-long-covid-19-may-be-entitled-to-accommodations, accessed March 13, 2023.

[9] Forbes, “The Costs of Training New Employees, Including Hidden Expenses,” https://www.forbes.com/sites/adp/2017/06/02/the-costs-of-training-new-employees-including-hidden-expenses/?sh=4ee63aa0afb2, accessed March 13, 2023.

[10] World Economic Forum, “Long Covid is keeping millions of Americans out of work, new data shows,” https://www.weforum.org/agenda/2022/08/long-covid-work-economy-united-states-health/, accessed March 13, 2023.

[11] World Economic Forum, “Long Covid is keeping millions of Americans out of work, new data shows,” https://www.weforum.org/agenda/2022/08/long-covid-work-economy-united-states-health/, accessed March 13, 2023.