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COVID-19 Coronavirus and Disability

| Jun 1, 2020 | Firm News

We expect to see two types of COVID-19 Coronavirus disability type disputed claims.  First, we expect to see disability insurers disputing or denying claims of insureds  who are disabled not because they have COVID-19 Coronavirus, but because they are afraid they will get it.  That is, people who are immune suppressed for other reasons which did not disable them, but would make them much more susceptible to serious illness and death if they contracted COVID-19 Coronavirus.  Therefore, they are unwilling to return to work in an environment where they would have to interact with other persons.  Second we expect to see some percentage of COVID-19 Coronavirus patients having long term effects leading to disability.

Millions of people worldwide have contracted COVID-19 Coronavirus.  It appears that a significant portion have no symptoms and are unaware they have or have had the disease.  It appears that the vast majority of the people who do have symptoms have mild cold-like or mild flu-like symptoms.  It appears that a small percentage of persons who contract COVID-19 Coronavirus become seriously ill, and even smaller percentage are hospitalized, and an even smaller percentage die.  Since the disease is readily diagnosed and highly contagious, we do not expect insurance companies to dispute disability claims by persons who seek disability benefits while they are infected by COVID-19 Coronavirus or are recovering from the infection.  So, most people who contract COVID-19 Coronavirus will have no difficulty if they have disability coverage obtaining appropriate disability benefits.

However, what about people who have not contracted COVID-19 Coronavirus but are afraid they might do so?  Are you disabled because you are afraid to return to a work environment because you might contract COVID-19 Coronavirus?  Are you entitled to disability benefits under these circumstances?  These are complicated questions.

First, most disability policies and plans have “actively at work” requirements: they require that you be actively at work on the day before your disability began.  If your employer temporarily laid you off due to lack of work due to the COVID-19 Coronavirus crisis and now is proposing to recall you to active work are you entitled to disability benefits?  It depends on the terms of your policy or plan.  Under some policies and plans the fact that you were laid-off for lack of work means that you were not actively at work on the day before you claim disability and therefore you are not entitled to disability benefits.

What if you were working remotely and now your employer wants you to return to your regular office or place of business?  While you were working remotely you did not interact with other people, but you cannot avoid interacting with others if you work in your regular place of business and no longer work remotely.  Many people have suppressed immune systems for many different reasons.  For example, people who recently had or ever had an organ transplant take anti-rejection medications which suppress their immune systems.  Others with chronic diseases have suppressed immune systems which make them far more vulnerable both to catching COVID-19 Coronavirus and to dying from it.  If you have a suppressed immune system and are called back to a physical place of work does that constitute a disability entitling you to a disability benefit under an insurance policy or disability plan if you are afraid to return to work?  Obviously, there is no clear answer as yet.  But we have some experience in the general area.  That is, the ERISA Law Center has represented claimants who have sought and received disability benefits not because their current conditions necessarily disable them, but because their current conditions make them more at risk if they return to work.  Most commonly, this has involved employees who suffer from uncontrolled hypertension, have a record of prior cardiac or stroke events and fear returning to a stressful job environment which could easily cause them suffer yet another cardiac or stroke event due to the combined effects of the uncontrolled hypertension plus the stress of work.  This also is involved persons with contagious but controlled diseases who work in the medical profession – that is, they interact routinely with patients in a close environment and are afraid that their conditions could be contagious by accident to their patients.

Here, we have general information that COVID-19 Coronavirus puts immune compromised persons at greater risk if they get it.  Therefore under many circumstances and many policies and plans persons who are immune suppressed due to other reasons, conditions that otherwise do not disable them may be entitled to collect disability benefits if they can no longer work for fear of contracting COVID-19 Coronavirus.  Obviously, this will depend in great extent on the state of your prior health and on the nature of your job.  For example, persons who work in the medical profession and regularly interact with patients, first responders, persons who work under circumstances where interaction generally with members of the public are unavoidable, are those most greatly at risk.  A person whose employer can put him or her in an office behind a closed door with little interaction directly with other persons other than by telephone or email, is at a lesser risk.

What about persons who contract COVID-19 Coronavirus but do not fully recover?  Obviously, as yet there is little information about this possibility.  But, we do have information about SARS – Severe Acute Respiratory Syndrome.  SARS, like COVID-19, is an infectious condition that can cause serious respiratory illness and death.  SARS was a concern in 2003 when an outbreak that began in China spread worldwide.  SARS was contained and there have been no cases of SARS anywhere in the world since 2004.  SARS, like COVID-19, is caused by a Coronavirus.  Like most respiratory viruses SARS appeared to spread from person to person through coughing, sneezing and close contact.  Symptoms of SARS seen during the 2003 outbreak included fever, cough, chills, fatigue, shortness of breath, headache and diarrhea. The infection progressed rapidly and most people with SARS needed to be hospitalized and isolated to prevent spread of the virus to other people, including healthcare workers.

The 2003 SARS epidemic was responsible for more than 8,000 cases of SARS in 29 countries, including 29 cases in the United States.  There were 774 SARS-related deaths; none in the United States.  SARS was fatal for one in 10 patients.  Age was an important factor in mortality, the risk of SARS being fatal increased to about half the patients over the age of 60.  A small percentage of patients with SARS had long term effects including depression, anxiety, cough, shortness of breath, chronic lung disease or kidney disease.

Obviously, COVID-19 has spread far more widely than SARS but it is likely that like SARS of those who recover from COVID-19, a certain percentage will have long term adverse effects.  Depending on the terms and conditions of insurance policies and disability plans, such people may or may not have claims for disability benefits.

If you are disabled by COVID-19 Coronavirus or fear of contracting the disease because of the nature of your work and other medical conditions, and believe you have a claim for disability benefits, the ERISA Law Center can help you.