Canadian HR Reporter

www.hrreporter.com 9 "People have described a general fatigue that never seems to go away, very similar to chronic fatigue syndrome." Daniel Lublin, Whitten & Lublin changed — that will be considered a failure to accommodate and discrimin- ation, he says. If, however, an employee becomes permanently disabled and is completely unable to work, and there's no chance of them ever returning to work, an employer might be able to end the rela- tionship on the basis of frustration of contract, he says. "But I don't think employers are going to be able to make those kinds of deci- sions now [with long COVID]; it's too early." Insurance claims for long-haulers Claims related to long COVID are rela- tively new, and they have generally been dealt with as disability insurance claims, says Kevin Dorse, assistant vice- president of strategic communications and public affairs at the Canadian Life and Health Insurance Association. These types of claims "are generally based on an assessment of an individual's condition and the requirements of their job. Insurers will assess a claim for short- term disability benefits based on whether the person is sick and cannot work and meets the definition of 'disabled' as defined within the plan and satisfies the contractual waiting period," he says. "We expect that life and health insurers ailment that's preventing them from doing a part of their job, says Lublin. "I don't think there's any legal debate, or there should be any reasonable legal debate, that post-COVID symptoms or COVID recovery or COVID long haulers should receive accommodation under the law — I think everyone would accept that." But it's disparate — it really depends on the conditions, the circumstances and the symptoms, he says. "A lot of people are working from home, so the symptoms about being unable to get up and move around, for someone who sits at a desk, may not restrict them from performing their job, compared to somebody whose job is to stock a shelf all day." An employer doesn't even need to know whether it's the long-term effects of COVID or any other illness or disability because they don't need to know the employee's diagnosis, says Lucifero. "But they have to have some idea of what the prognosis is — meaning, of course, 'How long is this employee going to be off for?' or, alternatively, 'What specific accommodations does the employer need to provide?'" And if an employer decides to simply end the accommodation because a long time has passed — even though the employee's medical status hasn't would assess long COVID as they would any other disability claim." There have been reports in the media that COVID long-haulers are seeing their claims for disability rejected. For most refusals, the typical reason provided by insurance companies is those employees are not totally disabled, meaning they are able to do some amount of work, says Lucifero. "If an employee is working at 40 per cent capacity, for example, for what- ever reason, but it's COVID-related, they might not get approved for disability insurance short term or long term because the policy requires a total disability." Return-to-work challenges People at DMI who have been dealing with cases of COVID are seeing slightly longer return-to-work plans as people take a longer time in their recovery, says Paterson. "Where we would previously see two or four weeks of modified duties, we're now seeing six or eight weeks," she says. "There's a lot of variation in what long COVID looks like for people. And so the best approach is going to be to figure out: What are the specific limitations and restrictions an individual employee has? What are the specific accommoda- tions they need? And how do we work within that? And it's not going to be broad strokes, applicable to everybody." T hat 's why it 's impor tant for employers, in looking at accommoda- tions, to build in regular touchpoints, both in assessing their operational needs and the employee's needs, says Paterson. "Because this is still so new, there's still so much to learn about this. The data that exists on other conditions — about what is an anticipated recovery time- line, what is an ideal treatment — that's still very much under review and largely unknown." CHRR

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