Daily Archives: August 5, 2021

“Long COVID” as a Disability Under the Americans with Disabilities Act, Section 504, and Section 1557

August 5, 2021 By in Coronavirus, Federal Agencies, MEDical Tags: , , , , , , ,

 

 

Late last month, HHS/Office of Civil Rights and DOJ/Civil Rights Division Disability Rights Section released its guidance for “long COVID” or “long haulers”.

Although many people with COVID-19 get better within weeks, some people continue to experience symptoms that can last months after first being infected, or may have new or recurring symptoms at a later time.1 This can happen to anyone who has had COVID-19, even if the initial illness was mild. People with this condition are sometimes called “long-haulers.” This condition is known as “long COVID.”2

The new guidance explains that long COVID can be a disability under the ADA, Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Affordable Care Act, and explains how these laws may apply. Each of these federal laws protects people with disabilities from discrimination.

1. What is long COVID and what are its symptoms?

According to the Centers for Disease Control and Prevention (CDC), people with long COVID have a range of new or ongoing symptoms that can last weeks or months after they are infected with the virus that causes COVID-19 and that can worsen with physical or mental activity.8 Examples of common symptoms of long COVID include:

• 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
• Fever
• Loss of taste or smell

This list is not exhaustive. Some people also experience damage to multiple organs including the heart, lungs, kidneys, skin, and brain.

2. Can long COVID be a disability under the ADA, Section 504, and Section 1557?

Yes, long COVID can be a disability under the ADA, Section 504, and Section 1557 if it substantially limits one or more major life activities.9 These laws and their related rules define a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual (“actual disability”); a person with a record of such an impairment (“record of”); or a person who is regarded as having such an impairment (“regarded as”).10 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. This guidance addresses the “actual disability” part of the disability definition. The definition also covers individuals with a “record of” a substantially limiting impairment or those “regarded as” having a physical impairment (whether substantially limiting or not). This document does not address the “record of” or “regarded as” parts of the disability definition, which may also be relevant to claims regarding long COVID.

a. Long COVID is a physical or mental impairment

A physical impairment includes any physiological disorder or condition affecting one or more body systems, including, among others, the neurological, respiratory, cardiovascular, and circulatory systems. A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness.11 Long COVID is a physiological condition affecting one or more body systems. For example, some people with long COVID experience:

• Lung damage
• Heart damage, including inflammation of the heart muscle
• Kidney damage
• Neurological damage
• Damage to the circulatory system resulting in poor blood flow
• Lingering emotional illness and other mental health conditions

Accordingly, long COVID is a physical or mental impairment under the ADA, Section 504, and Section 1557.12

b. Long COVID can substantially limit one or more major life activities

“Major life activities” include a wide range of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working. The term also includes the operation of a major bodily function, such as the functions of the immune system,
cardiovascular system, neurological system, circulatory system, or the operation of an organ. The term “substantially limits” is construed broadly under these laws and should not demand extensive analysis. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not need to be severe, permanent, or long-term. Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active. Long COVID can substantially limit a major life activity. The situations in which an individual with long COVID might be substantially limited in a major life activity are diverse. Among possible examples, some include:

• A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
• A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
• A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.

Read more here.

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Grand Jury Indicts FS Employee For”Engaging in Illicit Sexual Conduct” in the Philippines

August 5, 2021 By in Court Cases, Diplomatic Security, Foreign Service, Hall of Shame, Realities of the FS, State Department, U.S. Missions Tags: , , , , , , ,

 

 

Via USDOJ:
U.S. Foreign Service Member Indicted for Engaging in Illicit Sexual Conduct in the Philippines and Possession of Child Pornography

A federal grand jury in the Eastern District of Virginia returned an indictment today charging a member of the U.S. Foreign Service with engaging in illicit sexual conduct in a foreign place and possession of child pornography.

According to the indictment and court documents, Dean Cheves, 61, was a member of the U.S. Foreign Service serving at the U.S. Embassy in the Philippines between September 2020 and February 2021. While in the Philippines, Cheves allegedly met a 16-year-old online. Court documents further detail that Cheves allegedly engaged in sexual activity with the minor on two occasions, knowing the minor’s age, and produced cell phone videos of himself engaging in the sex acts each time. The videos were found on Cheves’s devices seized from his embassy residence while in the Philippines. Between February 2021 and March 2021, he also allegedly possessed child pornography.

Cheves is charged with one count of engaging in illicit sexual conduct in a foreign place and one count of possessing child pornography in the special maritime and territorial jurisdiction of the United States or on lands owned or leased by the United States. Cheves previously made his initial court appearance on July 6 before U.S. Magistrate Judge Ivan D. Davis of the U.S. District Court for the Eastern District of Virginia. If convicted, he faces a maximum penalty of up to 30 years in prison on count one, and up to 10 years in prison on count two. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

Assistant Attorney General Kenneth A. Polite Jr. of the Justice Department’s Criminal Division, Acting U.S. Attorney Raj Parekh for the Eastern District of Virginia made the announcement and Assistant Director for Domestic Operations Mark Sullo of the U.S. Department of State’s Diplomatic Security Service made the announcement.

The State Department, Diplomatic Security Service, is investigating the case.

Trial Attorney Gwendelynn Bills of the Justice Department’s Child Exploitation and Obscenity Section and Assistant U.S. Attorney Lauren Pomerantz Halper of the U.S. Attorney’s Office for the Eastern District of Virginia are prosecuting the case.

This case was brought as part of Project Safe Childhood, a nationwide initiative launched in May 2006 by the Department of Justice to combat the growing epidemic of child sexual exploitation and abuse. Led by U.S. Attorneys’ Offices and the Child Exploitation and Obscenity Section, Project Safe Childhood marshals federal, state and local resources to better locate, apprehend and prosecute individuals who exploit children via the internet, as well as to identify and rescue victims. For more information about Project Safe Childhood, please visit www.justice.gov/psc.

An indictment is merely an allegation, and all defendants are presumed innocent until proven guilty beyond a reasonable doubt in a court of law.

We have not been able to locate Cheves’s congress.gov records. The DOJ statement describes him as a”U.S. Foreign Service Member.”  An archived 2007-2017 version of DipNote noted that he was a Foreign Service Officer and new media strategist with the IIP Office of Innovative Engagement (OIE). A June 2019 issue of State Magazine (PDF) includes a notation that he was the Director of Global Publishing Solutions (GPS) in Manila. GPS, an office under the Bureau of Administration provides design, print, and copier management services to the State Department domestically and overseas. In addition to WashDC, GPS has offices in Manila and Vienna.
The government’s motion filed on July 2 originally requested that records be sealed, noting that “Premature disclosure of the charges against the defendant would jeopardize an ongoing criminal investigation threatening our ability to locate and arrest the defendant. The defendant has ties to the Philippines, where his wife and daughter reside, and to California.”
Cheves was arrested on July 6, 2021 in Alexandria, VA. His offense was  listed as “18 U.S.C § 2423(c): Illicit Sexual Conduct in a Foreign Place.”

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@StateDept Issues New Policy For Local Staff at U.S. Missions in Suspended Operations

August 5, 2021 By in Locally Employed Staff, Realities of the FS, Regulations, State Department, U.S. Missions Tags: , , , , ,

 

 

The State Department recently issued its policy for locally hired staff at U.S. Mission in suspended operations (see 3 FAM 7170). Suspended operations denote “a U.S. mission or post that has ceased operating. During this period, U.S. direct hire (USDH) personnel are usually removed from post (often evacuated). It is possible that some LE staff may remain working on premises to maintain the facilities. Diplomatic relations with the host government are usually maintained under suspended operations; it is not a revocation of diplomatic relations with the host country.”

3 FAM 7174 Authorization of Caretaker LE staff 
(CT:PER-1039;   05-13-2021)
(Uniform State/USAID/Commerce/Agriculture)
(Applies Locally Employed Staff Only)

a. LE Staff who will continue to work on behalf of the U.S. mission during suspended operations must be designated as “Caretaker LE Staff”. Caretaker LE Staff continue to be subject to all applicable personnel policies (e.g., discipline, performance management, awards, pay increases, etc.).
b. Within thirty (30) calendar days from the date on which a U.S. mission is determined to be in suspended operation status, the regional bureau will submit an action memorandum to the Under Secretary of State for Management requesting approval for retention of and continuation of pay to current LE Staff. The action memo requesting continued employment of Caretaker LE Staff must include specific information establishing the need for continued employment of and sufficient supervision over Caretaker LE Staff and should include, at a minimum, the following information:

(1)  List of proposed Caretaker LE Staff, along with their respective employment sections;
(2)  Duties being performed and an explanation regarding why these duties are mission essential;
(3)  Confirmation of appropriate supervisory controls;
(4)  The extent to which employees will regularly report to the workplace and, if not reporting to the workplace, information on how employees will be performing their duties and communicating with supervisors; and 
(5)  Data on those employees who may require updated work plans or job reassignments. 

c.  Retention of and/or continuation of pay to LE Staff will be subject to review every six (6) months thereafter by the Under Secretary for Management. If approved, the action memoranda will be provided to CGFS/C/PPR/LE. 
d. As noted in 3 FAM 7174(a), Caretaker LE Staff are subject to applicable personnel policies (e.g., discipline and performance management) and any discipline or separation of Caretaker LE Staff should be consistent with 3 FAM 7720 and 3 FAM 7730.

The new guidance says that immediately upon the determination to place a U.S. mission in suspended operation status, LE Staff who are not designated as Caretaker LE Staff will be temporarily placed in excused-leave status (i.e., administrative leave).
According to the FAM, once a determination is made to remove an LE Staff from excused-leave status or to remove an employee’s position from the authorized caretaker list, separation should proceed pursuant to the U.S. mission’s Reduction in Force (RIF) policy and the mission’s Local Compensation Plan (LCP).
No RIF retention register is required, no RIF appeal process is required, and the FAM says that the “U.S. mission should not include information about appeals in the RIF notice provided to LE Staff.”

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Ambassador Patricia Mahoney: From Benin to the Central African Republic

August 5, 2021 By in AF |Africa, Ambassadors, FSOs, Nominations, Officially In, U.S. Missions Tags: , , ,

 

 

President Biden announced his intent to nominate Ambassador Patricia Mahoney to be the next U.S. Ambassador to the Central African Republic. The WH released the following brief bio:

Patricia Mahoney, Nominee for Ambassador Extraordinary and Plenipotentiary to the Central African Republic

Patricia Mahoney, a career member of the Senior Foreign Service, class of Minister-Counselor, currently serves as U.S. Ambassador to the Republic of Benin. Previously she was an Acting Deputy Assistant Secretary in the Bureau of East Asian and Pacific Affairs and the Office Director of the Office of Mainland Southeast Asia, also in the Bureau of East Asian and Pacific Affairs. Earlier, Mahoney was the Deputy Chief of Mission of the U.S. Embassy in Kampala, Uganda, and before that the Deputy Chief of Mission of the U.S. Embassy in Kathmandu, Nepal. Mahoney also served as Director for South Asia at the National Security Council. Mahoney earned her B.A. cum laude from Harvard University, Cambridge, Massachusetts and her M.A. from the University of Hawaii.  She is a Distinguished Graduate of the National War College in Washington, D.C., receiving an M.S. degree in 2009.  Ms. Mahoney speaks French, Thai, Nepali and Lao.

If confirmed, Ambassador Mahoney would succeed career diplomat Lucy Tamlyn who was sworn in as U.S. Ambassador to the Central African Republic on January 11, 2019.

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Amy Searight of CSIS to be Asst Administrator For Asia Bureau at USAID

August 5, 2021 By in Nominations, Officially In, Political Appointees, USAID Tags: , , ,

 

President Biden announced his intent to nominate Amy Searight to be Assistant Administrator for the Asia Bureau at USAID. The WH released the following brief bio:

Amy Searight, Nominee for Assistant Administrator for the Bureau for Asia, United States Agency for International Development

Amy Searight is currently Senior Associate for Asia at the Center for Strategic and International Studies (CSIS), where she previously served as Senior Advisor and Director of the Southeast Asia Program.  Prior to joining CSIS, Amy served in the Obama-Biden Administration.  From 2014-2016 she served as Deputy Assistant Secretary of Defense for South and Southeast Asia, and from 2012-2014 she served Principal Director for East Asia Security in the Office of the Secretary of Defense.  In 2016 she was awarded the Secretary of Defense Medal for Outstanding Public Service.  Before the Pentagon, Searight served as Senior Advisor for Asia in the U.S. Agency for International Development for two years.

Earlier in her career, she worked in the State Department as an International Affairs Fellow of the Council on Foreign Relations, serving as Special Economic Advisor for Asia Pacific Economic Cooperation and on the Policy Planning Staff.  She was assistant professor of political science at The Elliott School of International Affairs at The George Washington University and at Northwestern University.  A native of New Jersey, she received her B.A. in political economy from Williams College, and an M.A. in East Asian Studies and Ph.D. in Political Science from Stanford University.

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