Is Long Covid A Disability Under The Ada? Those Who Suffer are Protected Against Discrimination.

Jan 25

COVID 19 Long Hauler Gastrointestinal Issues

COVID 19 Long Hauler Gastrointestinal Issues


The Americans with Disabilities Act (ADA) (42 U.S.C. § 12101) was enacted by Congress in 1990.    This civil rights law (as amended) prohibits discrimination based on disability.    Disability is defined under SEC. 12102. [Section 3] (A) as “a physical or mental impairment that substantially limits one or more major life activities” of an individual.    Impairment of a major bodily function includes, but is not limited to: “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” (Sec. 2 (B).   

On July 26, 2021, the Office for Civil Rights under the U.S. Department of Health & Human Services in cooperation with the Civil Rights Division of the Department of Justice issued “Guidance on ‘Long COVID’ as a Disability Under the ADA Section 504, and Section 1557.”   

This Guidance concludes that individuals who suffer long COVID are protected from discrimination in the workplace because long COVID “can be a disability under Titles II (state and local government) and III (public accommodations) of the Americans With Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 (Section 504) and Section 1557 of the Patient Protection and Affordable Care Act (Section 1557).”       

The Guidance includes a description of common symptoms associated with long COVID such as: Tiredness or fatigue; Difficulty thinking or concentrating (sometimes called “brain fog”); Shortness of breath or difficulty breathing; Headache; Dizziness on standing; Fast-beating or pounding heart (known as heart palpitations); Chest pain; Cough; Joint or muscle pain; Depression or anxiety as well as Fever and Loss of taste or smell.

Now that COVID and its mutations, including the Delta variant and Omicron have bedeviled our lives for over two years, it is clear that “A person with long COVID has a disability if the person’s condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits’ one or more major life activities.”

People who meet the ADA’s disability guidelines are “entitled to the same protections from discrimination as any other person with a disability under the ADA Section 504 and Section 1557.”    They are entitled to “full and equal opportunities to participate in and enjoy all aspects of civic and commercial life.”   

Employers and places of public accommodation need to be aware of the obligation to provide their long COVID suffering employees and the public with “reasonable modifications” such as providing students who may have difficulty concentrating with additional time to finish a test, giving employees and customers an opportunity to sit down or pumping gas for a customer who is disabled.   

It is equally clear that under New Jersey’s Law Against Discrimination employees are also protected from workplace discrimination, as is the public generally. Read more this New Jersey PDF “5 Things You Should Know About Civil Rights and COVID-19.”
   
Has work exposed you to COVID 19 or a variant. If this has affected you in any way detailed above, you may have a viable Worker’s Compensation case. Feel free to call Taenzer & Ettenson, P.C. for a free consultation at 856.235.1234 to see if you qualify for workers’ compensation benefits in New Jersey. Or click here to use our contact form.

Uri

Why Is The Usual Wording Found In Advance Directives Antiquated? It’s Probably Due To The Typical Boiler Plate Language Most Often Used.

Jan 11

Legal Document

The January 6, 2022 Opinion Page of the New York Times featured a thought-provoking article by Daniela J. Lamas, a pulmonary and critical-care physician at Brigham and Women’s Hospital in Boston.    It is titled: A Better Way to Face Death and it deals with the issue of “Do Advance Directives by healthy people actually deliver better care?”

The article discusses the heart-wrenching decisions which need to be made when a proposed life-sustaining procedure contradicts the patient’s expressed wishes pursuant to an advance directive.

Having prepared countless advance directives on behalf of clients and with the hindsight of many discussions pertaining to these documents, I would offer the following thoughts: The problem raised by Dr. Lamas is probably due to the following, or similar, language which (unfortunately) appears in most forms of Advance Directives:

These are my wishes for my future medical care if there ever comes a time when I can’t make these decisions for myself.

A. These are my wishes if I have a terminal condition Life-sustaining treatments:

_____ I do not want life-sustaining treatment (including CPR) started. If life-sustaining treatments are started, I want them stopped.

_____ I want the life-sustaining treatments that my doctors think are best for me.

Other wishes: (fill in the blank)

Artificial nutrition and hydration:

_____ I do not want artificial nutrition and hydration started if they would be the main treatments keeping me alive. If artificial nutrition and hydration are started, I want them stopped.

_____ I want artificial nutrition and hydration even if they are the main treatments keeping me alive.

Other wishes: (fill in the blank)

Comfort care:

_____ I want to be kept as comfortable and free of pain as possible, even if such care prolongs my dying or shortens my life.

Other wishes: (fill in the blank)

B. These are my wishes if I am ever in a persistent vegetative state Life-sustaining treatments:

_____ I do not want life-sustaining treatments (including CPR) started. If life-sustaining treatments are started, I want them stopped.

_____ I want the life-sustaining treatments that my doctors think are best for me.

Other wishes: (fill in the blank)

Artificial nutrition and hydration:

_____ I do not want artificial nutrition and hydration started if they would be the main treatments keeping me alive. If artificial nutrition and hydration are started, I want them stopped.

_____ I want artificial nutrition and hydration even if they are the main treatments keeping me alive.

Other wishes: (fill in the blank)

Comfort care:

_____ I want to be kept as comfortable and free of pain as possible, even if such care prolongs my dying or shortens my life.

Other wishes: (fill in the blank)

C. Other directions:

You have the right to be involved in all decisions about your medical care, even those not dealing with terminal conditions or persistent vegetative states. If you have wishes not covered in other parts of this document, please indicate them below.

Expecting a person in their 30’s or 50’s or even over 60 to be able to predict their future medical circumstances, let alone know the frame of mind in which they would be regarding so-called “end of life” care decisions, is an irrational exercise. The case described by Dr. Lamas of the 60-year-old woman whose advance directive instructed that she should not be intubated, having sustained a traumatic hospitalization when she was young, proves my point.

The forms of advance directives, also included in the health care powers of appointment which we prepare on behalf of clients let the physicians (and family) know that philosophically, at the end of life, the client does not want to be violated by heroic measures which would only prolong life for “a short time.” This assures the medical community that no lawsuit (e.g. the case of Terry Schiavo or Karen Ann Quinlan) will ensue if the physician fails to use every available possible means of prolonging one’s life, such as heart resuscitation or even intubation.

Here is the general language we propose for our clients’ consideration when preparing their advance directives:

If at any time I should be diagnosed as having an incurable and irreversible illness, disease or condition, and my attending physician and at least one other physician who has personally examined me determine that my condition is terminal, I direct that life-sustaining treatment which would serve only to artificially prolong my death be withheld and discontinued.    I also direct that I be given only medically approved treatment and care necessary to keep me comfortable and to relieve pain.    As used herein, “terminal condition” means that my physicians have determined that I will die within a short time.

If at any time I become permanently unconscious, and it is determined by my attending physician and at least one other physician with appropriate expertise who has personally examined me, that I have totally and irreversibly lost consciousness and my ability to interact with other people and my surroundings, I direct that life-sustaining treatment be withheld and discontinued and that I be given only medically approved treatment and care necessary to provide for my personal hygiene and dignity.    As used herein, “permanently unconscious” means total and irreversible loss of consciousness and capacity for interaction with the environment and includes a persistent vegetative state and an irreversible coma.

I may become diagnosed as having an incurable or irreversible illness, disease or condition, which may not be terminal, but which causes me to experience severe and worsening physical or mental deterioration and/or a permanent loss of capacities and faculties I highly value.    If, in the course of my medical care, the burdens of continued life with treatment become greater than the benefits I experience, I direct that life-sustaining treatment be withheld and discontinued and that I be given only medically appropriate care necessary to keep me comfortable and to relieve pain.

As used herein, “life-sustaining treatment” means the use of any medical device or procedure, including artificially provided fluids and nutrition, drugs, surgery or therapy, that uses mechani­cal or other artificial means to sustain, restore or supplant a vital bodily function, and thereby increases my life span.    The procedures and treatment to be withheld and withdrawn include, without limitation, surgery, antibiotics, cardiopulmonary resusci­tation, respiratory support, blood and blood products, dialysis, chemotherapy, radiation therapy, and invasive diagnostic tests.    I expressly authorize the withholding and withdrawal of artificially provided food, water, and other nourishment and fluids.

If I have been diagnosed as pregnant and my physician knows of this diagnosis, this directive shall have no force or effect during the course of my pregnancy to the extent that the actions to be taken pursuant to this directive would adversely affect the viability of the fetus.

By making this directive, I inform those who may become entrusted with my care of my wishes and intend to ease the burdens of decision-making which this responsibility may impose.    I under­stand the purpose and effect of this directive and sign it know­ingly, voluntarily and after careful deliberation.

Unfortunately, too often I was present at hospitals and at the bedsides of both relatives and friends during their last hours of life.    Practically speaking, based on my observation and that of others, typically the only inquiry by attending physicians is “does the patient have a living will?”    Although the document is generally included in the patient’s chart, its specific instructions are not likely to be scrutinized. At such times, the medical staff and family, having the patient’s best interests at heart, will strive to keep the patient as comfortable as possible and often pray for the inevitability of death to ensue sooner rather than later.    It is certainly possible that there will be cases where the family insists on last-minute heroic, yet medically futile, interventions.

It is therefore important both for doctors’ protection from lawsuits and especially for the peace of mind of loved ones who may be inclined to insist on miraculous recoveries that everyone has a Living Will.    We recommend our clients sign the generic (as opposed to specific) forms of Advance Directives (as well as Health Care Powers of Attorney) to provide needed reassurance and hopefully prevent controversy or confusion at the most stressful of times.

You can learn more on our page WILLS AND ESTATE PLANNING | IMPORTANT REASONS TO CONSIDER AN ESTATE PLAN. Or feel free to call me directly at Taenzer & Ettenson, P.C. (856.235.1234) for a free consultation. Or you may click here to use our contact form.

Uri

Why Does Long COVID Seem To Effect So Many Organ Systems? Perhaps the virus is present and spreads through the bloodstream.

Jan 04

COVID-19 Blood Test

If there was a mystery as to why so many body organs can become temporarily or long-term impacted after our lungs are primarily infected by COVID-19, we now have an answer.    Depending on an individual’s immune system, it appears that, in many cases, the virus can spread beyond the airway to almost every organ in the body where it has been detected in the heart, small intestine and adrenal glands. A study of tissues taken after 44 autopsies of COVID related deaths was conducted under the auspices of the NIH. The journal Nature published the results online last week in a manuscript still under review.

According to Ziyad Al-Aly, director of the Clinical Epidemiology Center at the VA’s St. Louis Health Care System, “This is remarkably important work…For a long time now, we have been scratching our heads and asking why long COVID seems to affect so many organ systems.”  The fact that the virus was identified in brain tissue as well as the heart and other organs which are not directly connected with the airway explains the long duration of some symptoms such as “brain fog” and other neuropsychiatric conditions.

The research lends credence to the probability that infection of the pulmonary system is due to an early phase of infection of the airway when the virus is present in the bloodstream which “seeds” it throughout the body. This can even occur when patients have experienced very mild or no symptoms at all. A similar process has been described in persistent infection due to measles.

Clearly, these findings are preliminary in nature. Review and replication by other “peer” scientific studies may validate or contradict these findings.  Dr Al-Aly concluded that “We need to start thinking of SARS-CoV-2 as a systemic virus that may clear in some people, but in others may persist for weeks or months and produce long COVID – a multifaceted systemic disorder”

Let us hope the New Year 2022 will finally usher in a manageable conclusion to the COVID pandemic crisis due to wider (worldwide) implementation of vaccines and effective therapeutic anti-viral medications such as the just approved Phizer Paxlovid drug.

If your job has exposed you to COVID 19 or a variant and has affected you in unexpected parts of your body, you may have a viable Worker’s Compensation case. Feel free to call Taenzer & Ettenson, P.C. for a free consultation at 856.235.1234 to see if you qualify for workers’ compensation benefits in New Jersey. Or click here to use our contact form.

Uri

How Do We Pay For The Lives, Long-Haul Suffering And Costs Torn Apart By COVID?

Dec 29

Sorry We're Closed Sign

Does anyone understand the enormous costs associated with the “plague” which is the only reasonable analogy to COVID-19 and its various mutations? 

According to an October, 2020 study published in JAMA by Harvard economists Lawrence Summers and David Cutler,

“[T]he SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2) pandemic is the greatest threat to prosperity and well-being the US has encountered since the Great Depression….These costs far exceed those associated with conventional recessions and the Iraq War, and are similar to those associated with global climate change.   

“The Congressional Budget Office projects a total of $7.6 trillion in lost output during the next decade.”

The financial toll is, of course, overshadowed by the loss of lives. Over 5.5 million lives have been extinguished world-wide. 815,000 lives lost in the United States alone and the number of American folks whose lives were torn apart by this virus, many of whom have not recovered fully for months and months is over 53,000.000.

The Harvard study points out that

“[S]ome individuals who survive COVID-19 are likely to have significant long-term complications, including respiratory, cardiac, and mental health disorders, and may have an increased risk of premature death. Data from survivors of COVID-19 suggest that long-term impairment occurs for approximately one-third of survivors with severe or critical disease. Because there are approximately 7 times as many survivors from severe or critical COVID-19 disease as there are COVID-19 deaths, long-term impairment might affect more than twice as many people as the number of people who die.

“The estimated cumulative financial costs of the COVID-19 pandemic related to the lost output and health reduction is estimated at more than $16 trillion, or approximately 90% of the annual gross domestic product of the US.  For a family of four, the estimated loss would be nearly $200 000. Approximately half of this amount is the lost income from the COVID-19–induced recession; the remainder is the economic effects of shorter and less healthy life.

“Output losses of this magnitude are immense. The lost output in the Great Recession was only one-quarter as large. The economic loss is more than twice the total monetary outlay for all the wars the U.S. has fought since September 11, 2001, including those in Afghanistan, Iraq, and Syria.  By another metric, this cost is approximately the estimate of damages (such as from decreased agricultural productivity and more frequent severe weather events) from 50 years of climate change.”

So the obvious question which is barely addressed by commentators is: Where is payment for the costs of this pandemic coming from?  Does the U.S. print more trillions of dollars, that is continue to increase the national debt by borrowing the funds by the Federal Reserve?  The Federal Reserve’s ability to issue dollars out of thin air has essentially funded every war in which our country has been engaged both before and especially since September 11, 2001. Think of the annual “deficit” due to Congress’s refusal  to raise revenue (i.e. taxes) to cover the enormous cost of all government programs. 

Which brings us to the consequence of all that spending, namely inflation. My concern is best expressed by the following quotefrom a piece by John H. Cochrane:

“Over the broad sweep of history, serious inflation is most often the fourth horseman of an economic apocalypse, accompanying stagnation, unemployment, and financial chaos. Think of Zimbabwe in 2008, Argentina in 1990, or Germany after the world wars.

“The key reason serious inflation often accompanies serious economic difficulties is straightforward: Inflation is a form of sovereign default. Paying off bonds with currency that is worth half as much as it used to be is like defaulting on half of the debt. And sovereign default happens not in boom times but when economies and governments are in trouble.”

Uri

Is My Loss Of Smell Due To COVID-19 A Potential Life Threatening Hazard? Yes, And You May Have A Viable NJ Workers Compensation Case

Dec 20

Lost Sense of Smell and COVID
COVID-19 COD is the medical term, based on the diagnosis of “olfactory dysfunction” (OD), which has afflicted so many “Long Haulers” who suffer significant loss of smell associated with this virus infection. Thanks to a new research letter published in the journal JAMA Otolaryngology-Head & Neck Surgery on November 18, 2021, we now have a better understanding of the number of patients whose sense of smell does not return after infection with Covid-19.     

A lost sense of smell was one of the first known symptoms of COVID-19. Since the pandemic first began, many people have talked about the frustration of losing their ability to smell after contracting the virus. While not everyone who has had COVID develops this symptom, plenty do, and the loss of smell can linger for well after someone has recovered from the virus itself.

It is estimated that somewhere between 700,000 to 1.6 million people in the U.S. who had COVID-19 had a loss of smell—or a change in their sense of smell—that lasted for more than six months. Significantly, this has created an “emerging and growing public health concern.”    Clearly, even a minor loss of smell (also known as Olfactory Dysfunction) can be a life-altering issue.  Not only does smell enhance the taste of virtually all food, but people with COVID also lose their ability to recognize foul and dangerous odors and rancid food.

“Eric Holbrook, MD, an anosmia researcher and director of rhinology at Mass Eye and Ear, also says that it’s a ‘known potential hazard’ to have smell loss, pointing out that people with COD aren’t able to smell smoke from a fire or a natural gas leak.”

Clearly, there are many occupations that involve odor detection. A good example would be fire and smoke detection by first responders. Natural gas explosions are preventable because of the addition of a chemical, mercaptan, which provides a distinctive odor. The food industry also provides many examples of jobs that are dependent on a keen sense of smell.

If your job has exposed you to Corona 19 or a variant and if your sense of smell has been impaired, you may have a viable Worker’s Compensation case. If so, please call Taenzer & Ettenson, P.C. for a free consultation at 856-235-1234 and see if you qualify for workers’ compensation benefits in New Jersey. Or click here to use our contact form. 

Uri

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