By Mark Scherzer, Esq. (Law Office of Mark Scherzer)
I’m still sick with COVID-19. Can I get disability benefits?
If you can’t seem to recover from COVID-19 and are unable to return to work, you may be wondering if you can qualify for disability. The answer is, “Yes, probably, if you satisfy the terms of your coverage.” The insurance questions we now face, much like the virus itself, are new and unexpected. Whether or not you can get disability benefits may be a complex question. It all depends on what type of coverage you are seeking, such as an employer-sponsored short or long term disability plan, a private disability income or business overhead policy, or Social Security’s disability program.
For the first couple of months of the pandemic, we expected those who survived the virus would only be ill for a few days, perhaps a week or two at most. Doctors were still making predictions based on flu viruses. We thought the legal and economic issues ahead would primarily involve failed businesses, downsizing and loss of insurance. It turns out, many people will struggle with the after-effects of COVID-19 for a long time and will be unable to work. Many will require disability benefits.
Long Term Effects of COVID-19 – One Person’s Story
We now know about the “long haulers,” those who are sick from the virus for months and months — with persistent debilitating symptoms and the worrying possibility of long-term damage to their overall health and organs. Here’s what client Steven Gutierrez reports:
I started getting sick on March 15. I met a friend for lunch a few days earlier on March 9. We never even shook hands—stayed four feet apart the entire time—but that wasn’t enough. He started feeling sick that evening but was fine after a few days. I wasn’t so lucky.
Walking down the street, I suddenly got exhausted. I almost needed to sit down right on the sidewalk. I went home with a pounding headache. Within a day or two, my coughing started, dry and never-ending, with a deep burning in my chest. Soon, I had fevers, chills, aches, joint pain in my hands and knees. By the second week, I could barely get up to use the bathroom and was shaking constantly. I coughed nonstop and slept with my phone in my hand in case I needed an ambulance because I couldn’t breathe. I had a fever for weeks. I lost my sense of taste and smell. I quickly lost a frightening amount of weight. Then, thankfully, it passed! Mostly. I was better by early April. Manageable symptoms. Less scary. I still stayed in bed most of the day, but I wasn’t worried about being hospitalized or put on a ventilator anymore. Relieved, I told my family I’d be all better in about a week. I wasn’t.
I got sick again, then got a little better, then relapsed. Over and over. Every recovery feels like the very last time. Every time, I’m sure I’ll soon put this all behind me—but then I get sick again and am fully bedridden. All it takes is the tiniest thing. I’ll take a short walk, do my dishes or my laundry, and I’m back in bed, exhausted and coughing and wheezing. I’m on day 99. I’ve now been sick for over 14 weeks. For a long time, friends were telling me, “You must have gotten something else! It’s not meant to last this long!
The Bigger Picture
Like any good patient, Steven tries to keep up with new developments and potential treatments by sharing information online with others. Across the message boards, patients are reporting very different and devastating health problems:
There are thousands of us “long haulers” now. We’re all desperately trying to find some answers. And there are so many different symptoms! Some have headaches while others have constant diarrhea. A lot of us report sweats, confusion, memory loss—it seems to affect everyone differently, and each week can bring new symptoms. Lesions on the toes. Arthritis. Kidney pain. Muscle pain. Sudden racing heartbeats and dizziness.
Some test positive for COVID, but some test negative even after months. Most of us check our blood oxygen levels obsessively. We worry about blood clots and post-viral syndrome. Some develop antibodies, some just don’t. On May 11, just a few days before my 47th birthday, I took the DiaSorin Liaison antibody test. Anything above 15 is considered positive. Mine was 210. “That’s the highest result I’ve seen out of hundreds of tests so far,” the nurse told me, but it wasn’t comforting; I still didn’t get any better.
The one thing almost all of us seem to share is a deep, bone-weary fatigue. It makes it impossible to do anything—and if you even try to push through it, you only get worse. And you wonder, “How can I survive like this? What if it goes on like this forever?”
What if I’m sick for a long time?
Depending on your circumstances, you may qualify for benefits from a state or employer-sponsored short term disability or salary continuation program, an employer-sponsored group long term disability plan, individual privately purchased business overhead or disability income policies, and/or Social Security’s disability benefit. Each type of benefit has different rules, procedures, and policy features. We will focus on persons living in New York for the following benefits.
- New York State Short Term Disability: New York law requires most employers to provide an employee who has become unable to do his/her job due to sickness with a short term disability benefit of at least 50% of salary. Unfortunately, the maximum benefit is just $170 per week. The benefit starts on the 8th day you are unable to work and lasts up to 26 weeks. If you become disabled within 30 days of when you last worked, you must make your claim to your employer’s short term disability insurer. If you are on unemployment from your job for more than four weeks when you become disabled, you may still be able to make your claim to the New York State Insurance Fund. An explanation of these rules can be found at https://www.nolo.com/legal-encyclopedia/new-york-short-term-disability-benefits-sdi.html.
- Supplementary Short Term Disability and Salary Continuation Benefits: Although many employers provide only the minimum short term disability coverage that New York state law requires, other employers, particularly large ones, may have more generous salary continuation or short term disability insurance plans. In some cases, you receive higher benefits (covering a greater percentage of your salary, or even full salary) or more weeks of benefits if you have more years of service. You must find out how your company defines disability (definitions vary), what proof is required and how much the benefit will be.
What happens after short term coverage? Long term!
- Employer-Sponsored Group Long Term Disability Coverage for COVID-19: If the debilitating effects of COVID-19 mean you’re unable to work for many months, what can you do? If you are covered by a long term disability plan through your employer, you will typically receive between 50% and 70% of your previous income. Many of these policies also provide partial or residual disability benefits if you can work, but for less time, or can only do some of your job functions. Most long term disability plans require you to be under appropriate treatment for the disabling illness. At the moment, it’s unclear what the appropriate treatments are for COVID, let alone for someone with persistent post-COVID symptoms.
- As with short term salary continuation programs and disability policies, definitions of disability vary in long term disability plans. The best plans will pay benefits if you cannot continue at your own job, even if you can do other jobs. Less favorable policies require that you be unable to do any job you might qualify for, or even that you be unable to engage in any substantial gainful employment whatsoever. There should be a discussion of the applicable disability definition and other important plan provisions in the Summary Plan Description (the “SPD”) your employer is required to provide. Upon your written request, your employer is obligated to provide the SPD and other important “plan documents,” such as your group insurance policy, so you can understand all the applicable rules. A federal law called ERISA guarantees your right to get these documents. For more information regarding your right to relevant disability plan documents, see Tip #2 here: Tips for Effective ERISA Appeals.
- The waiting period for receiving benefits from most group long term disability plans is usually either 90 or 180 days after your disability begins. If you paid the premiums with your own after-tax dollars, the benefit payments will be received tax-free. If your employer paid the premiums, the benefit will be taxable. If you shared the premiums, part of the benefit will be taxable.
- Awful as it is to contemplate, some people may suffer the effects of COVID-19 for years, possibly even for the rest of their lives. We do not currently know how common these long term effects will be, or how treatable. If COVID-related disability is long term, it is important to know that with the typical employer-sponsored long term disability plan, benefits are paid only up to either age 65 or your regular retirement age. Less commonly, some plans offer only a few years of benefits. Even less common are lifetime benefits.
- Based on our experience with other illnesses with similar debilitating symptoms, we anticipate insurers will award benefits to those with a demonstrated medical history of COVID-19 treatments and/or laboratory work. That type of documentation, including regular doctor’s visits and lab results, will be critical. However, other claimants may have a more difficult time and may meet insurance company resistance to their disability claims. For example, many people were discouraged from seeking treatment during the early periods when hospitals were overwhelmed, so those individuals may have little contemporaneous documentation of their COVID-19 status. Moreover, a number of the persistent post-COVID symptoms are “subjective,” such as fatigue, headache and muscle pain. There is no dipstick measure to document the presence or severity of these symptoms. Other complaints, like cognitive confusion, may be substantiated with testing. Disability insurance carriers are frequently skeptical of claims based principally on subjective symptoms – particularly in the absence of contemporaneous diagnostic studies to demonstrate the presence and severity of the initial illness. Claimants in this situation would be well-advised to keep records (such as a fatigue journal or headache diary) to document their symptoms, and/or even obtain testimonials from household members, friends, or former co-workers to corroborate their persistent symptoms.
- People with disability coverage who toughed out the acute phase of their illness on their own (as directed by public health authorities) and now find themselves disabled by residual effects should immediately consult doctors and get tested for antibodies. Again, documentation will be needed to satisfy the “appropriate treatment” requirements of most long term disability policies.
- Another potential issue for people with group long term disability coverage is that many policies only cover those who become disabled while actively employed full time and working at their usual place of employment. Employees who contracted the virus after losing their jobs (because their employers closed down as a result of the COVID-19 crisis) are likely to face denials of their claims. Those who were put on temporary furlough, those whose hours/pay were cut, and those who were told to work remotely from home could also conceivably face denials or reduced benefits. However, there may be effective legal arguments for treating furloughed or reduced hour workers as full time employees, or to consider the work-at-home arrangement to be the usual place of employment. If possible, the employee may want to consider returning to work for a short period, as this may help overcome the argument that coverage was lost while the employee worked (or was furloughed) at home. Although one would hope insurers would interpret plans flexibly in the age of COVID-19, it is entirely possible that some will stick to the letter of their policies in order to avoid paying. Since it is better to anticipate these issues, it may be useful for people who contemplate making a claim on their group long term disability plan to involve counsel early in the process.
- Individual Disability Income Insurance and Business Overhead Coverage for COVID-19: Some people buy individual disability income insurance policies. Such disability income policies typically provide coverage for the policyholder’s incapacity to perform the material duties of his/her job at the time disability starts. Business owners may also buy business overhead expense coverage (which provides coverage for certain business expenses while the business owner is disabled). Individual disability income policies usually have a set monthly benefit (for example,$4,000 a month), and may have shorter waiting periods (as little as 30 days) before benefits begin. Business overhead expense policies typically specify which expenses will be covered, the duration such expenses can be claimed, and a maximum monthly amount. If you are fortunate enough to have a disability income or business overhead expense policy, your work status with your most recent employer and/or your job conditions are likely to be less important. Many individual disability income insurance policies will even pay benefits to people who have been unemployed for some time, as long as their illness makes them unable to engage in activities a typical unemployed person could do.
- Social Security Disability: Anyone who has been working in the U.S. and has paid enough quarters of Social Security earnings taxes to the government (older workers need 40 quarters of work credits, half earned in the last 10 years; younger workers need fewer quarters) may qualify to receive Social Security Disability benefits if they have a serious medical condition which will permanently prevent them from engaging in substantial gainful employment. The amount of the benefit will depend on your lifetime earnings. The average benefit is close to $1300 a month; the maximum benefit is close to $2800.
- There is a five-month waiting period after one becomes disabled to receive benefits. The first U.S. diagnosed COVID-19 cases will soon reach that five-month mark. But we may not know until individuals apply for benefits whether or not the Social Security administration will consider long term COVID-19 symptoms to be a serious medical condition, or if Social Security will assume that those currently afflicted are likely to remain disabled for more than a year, which would put them into the “permanent” category. Our practice does not handle Social Security applications, but there are both attorneys and non-attorney advocates recognized by the Social Security Administration who can provide legal assistance.
- Whether or not Social Security deems post-COVID symptoms to be a total and permanent disability, there are reasons to apply for the benefit. If you have employer-sponsored group long term disability coverage, your insurer will almost certainly require you to apply since they can pay less if you receive Social Security disability. And if you wait to apply until Social Security finalizes its position on COVID-19, you may forfeit benefits for the early months of your disability. Further, there are benefits beyond the monthly stipend that come with Social Security disability. After two years of Social Security disability benefits, one qualifies for Medicare, which may be a far more affordable health insurance option with more doctors than other plans.
If you think your COVID-19 symptoms will continue to disable you from working for an extended period, start considering making a claim. Get copies of any disability policies or plans covering you and find out the specifics. Get tested for documentation and start consulting with a doctor. Get help from a qualified professional, particularly if your employment status during the COVID-19 emergency has been in a gray area.
Like people with HIV/AIDS, Chronic Fatigue Syndrome, Lyme Disease and other “newer” illnesses, disability claimants with persistent COVID-related symptoms will present new challenges to the insurance system. You can win equitable treatment from the insurance industry and get the care and money you need, but it will take knowing your rights and persistently demanding that they be honored.
Attorney Mark Scherzer practices law in New York, where – for over 30 years – he has represented disabled employee with claims under employer-sponsored short term disability and long term disability plans, and has represented disabled policyholders with claims under individually purchased disability income insurance policies, and business overhead expense policies.