USG to Allow Certain Persons From Ukraine to Travel to US Without Pre-Departure COVID-19 Tests

On February 14, the United States announced the temporary relocation of US Embassy operations from Kyiv to Lviv. (U.S. Shuts Down Embassy Kyiv, “Temporarily Relocating” Operations to Lviv). 
According to a CDC announcement, on February 15, 2022, the Secretary of Homeland Security determined that it is in the national interest to permit the entry of noncitizen nonimmigrants who (1) are traveling with a U.S. citizen or lawful permanent resident; (2) were physically present in Ukraine as of February 10, 2022; and (3) possess valid travel documents allowing them to travel to the United States. Covered persons will not be required to provide proof of negative COVID-19 test result prior to boarding their flights to the United States. All travelers are still required to “properly wear well-fitting masks during the flight.

The Centers for Disease Control and Prevention (CDC) has announced that, based on a request from the U.S. Department of State and consistent with the determination made by the Secretary of Homeland Security, it will exercise its enforcement discretion regarding certain aspects of its “Amended Order: Requirement for Proof of Negative COVID-19 Test Result or Recovery from COVID-19 for All Airline Passengers Arriving into the United States,” and its Amended Order Implementing Presidential Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic pdf icon[PDF – 52 pages],” effective immediately. This exercise of enforcement discretion is limited to the following groups of individuals, to the extent they were physically present in Ukraine as of February 10, 2022: U.S. citizens; lawful permanent residents; noncitizens in possession of a valid U.S. immigrant visa; as well as noncitizen nonimmigrants who are traveling with a U.S. citizen or lawful permanent resident and possess valid travel documents allowing them to travel to the United States (collectively, “covered persons”). This exercise of enforcement discretion will enter into effect immediately and expire on March 1, 2022, at 2359 ET, subject to any further extensions.

Pursuant to this exercise of enforcement discretion, covered persons will not be required to provide proof of a negative COVID-19 test result prior to boarding a flight to the United States or to complete the attestation at Section 1 of the Combined Passenger Disclosure and Attestation to the United States of America pdf icon[PDF – 7 pages] form.

CDC requests that all air carriers cooperate in this exercise of enforcement discretion. Noncitizen nonimmigrants must continue to complete Section 2 of the Combined Passenger Disclosure and Attestation to the United States of America pdf icon[PDF – 7 pages] form attesting to either being fully vaccinated and providing proof of being fully vaccinated against COVID-19 or, if traveling pursuant to an exception, including a national interest exception, that they have made arrangements to receive a COVID-19 test within three to five days of arrival in the United States, to self-quarantine for seven days, to self-isolate in the event of a positive COVID-19 test or the development of COVID-19 symptoms, and to become fully vaccinated for COVID-19 within 60 days of arrival in the United States if intending to stay in the United States for more than 60 days.

All travelers are also required to properly wear a well-fitting mask to keep the nose and mouth covered during the flight, including on public transportation and in airports and other transportation hubs. Travelers may further be subject to additional public health measures as may be required by State and local health authorities at their arrival location in the United States.

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@StateDept’s Interagency Group to Coordinate Repatriation – Not Convened Since April 2019

 

In November 2021, the GAO released its review of the State Department’s repatriation efforts at the beginning of the COVID-19 pandemic. (see State Carried Out Historic Repatriation Effort but Should Strengthen Its Preparedness for Future Crises).
GAO’s report concludes in part that:

State carried out a historic effort in helping to repatriate more than 100,000 individuals during the first 6 months of the COVID-19 pandemic. Most of the passengers who responded to our survey gave State high marks for its communication and information related to repatriation. In addition, State’s application of lessons learned from its COVID-19 repatriation effort will help it address future crises effectively.

However, although State took steps to prepare for a global crisis such as the pandemic, addressing several gaps could improve State’s
preparedness to carry out future repatriations. Reconvening quarterly meetings of the WLG, which has not met since April 2019, would ensure better communication among the agencies involved in planning emergency evacuations.

The publicly available 1998 MOU between the State Department and DOD on the protection and evacuation of US citizens and nationals and designated other persons from threatened areas overseas explains the role of the WLG:

The Washington Liaison Group (WLG) is an organization consisting of members of the Departments of State and Defense, chaired by a representative of the Department of State, which has basic responsibility for the coordination and implementation of plans for the protection and evacuation in emergencies of persons abroad for whom the Secretaries of State and/or Defense are responsible. The representatives on the WLG are the points of contact for their departments on all matters pertaining to emergency evacuation planning, implementation of plans, and coordination of repatriation activities with the Department of Health and Human Services.

Regional liaison groups are established overseas and activated upon the recommendation of the WLG to assist in the coordination of emergency and evacuation planning between the Departments of State and Defense for areas outside the United States.

GAO notes that WLG members include DOD, DHS, and HHS, among other agencies, as well as a number of State bureaus. Specifically, State WLG members include CA, DS, the Bureau of Administration, the Bureau of Legislative Affairs, the Office of the Legal Advisor, and regional bureaus.
More from the GAO report:

Although State established an interagency group—the WLG—to ensure coordination for the protection and evacuation of U.S. citizens abroad, State did not sustain the regular quarterly WLG meetings, which may have contributed to gaps in interagency communication during the global repatriation effort. State and DOD established the WLG in 1998, with State as the lead agency, to coordinate and implement plans for the evacuation of persons abroad during emergencies, and according to State officials, State formalized WLG’s charter in 2018.39 The charter states that the WLG is expected to meet quarterly. CMS—which is responsible for department-wide crisis preparedness and response activities—manages the WLG’s day-to-day operations, including scheduling meetings.40 However, as of May 2021, CMS officials told us that they had not convened the group since April 2019.

According to CMS officials, after the WLG last met in April 2019 and before the pandemic began, members of the group questioned the
purpose of further meetings. CMS officials told us that, in response, they offered to schedule future meetings on request or if the need arose.
According to the officials, in February 2021, interagency WLG members expressed interest in CMS reconvening the WLG to discuss information sharing about repatriation across and among the task forces. However, CMS delayed reconvening the WLG in part because of limited capacity within CMS to manage the group while also playing an active role in managing State’s international response to the COVID-19 pandemic, according to CMS officials.

State documents and comments by CMS officials suggest that the lack of WLG meetings before and during the pandemic may have contributed to gaps related to interagency communication. In internal documents, State identified a number of gaps related to interagency communication during the pandemic, such as a lack of knowledge of how to communicate with other agencies, lack of guidance about points of contact at other agencies, and lack of clarity about U.S. government policy on repatriation. Comments by State officials indicated that such gaps led to challenges in communicating with the correct offices at interagency partners and coordinating repatriation efforts with interagency partners in the absence of clear, established policy. For example, CMS officials told us that regular meetings of the WLG would have facilitated interagency communication at the start of the COVID-19 pandemic, because such communication would have reduced the effort required to identify the correct contacts in other agencies.

In part because CMS did not convene quarterly WLG meetings in accordance with the group’s charter, State’s ability to coordinate with other agencies to respond to the pandemic and carry out repatriation activities was diminished. In addition to the requirement for the WLG to meet quarterly, leading practices for interagency coordination based on our prior work call for agencies to consider how to sustain leadership of interagency groups over the long term—such as by meeting regularly—in order to maintain the group’s effectiveness.41 CMS officials told us in May 2021 that they planned to reconvene the WLG in the future but did not know when that would occur. Convening quarterly meetings of the WLG would enhance State’s ability to coordinate repatriation activities with other agencies in any future global crisis.

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US Announces Travel Restrictions For Eight African Countries Over New COVID Variant

 

On November 26, President Biden issued a Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019. The proclamation is effective at 12:01 a.m. eastern standard time on Monday, November 29, 2021. This proclamation notes that this does not apply to persons aboard a flight scheduled to arrive in the United States that departed prior to 12:01 a.m. eastern standard time on November 29, 2021.
The entry restrictions cover travelers (with certain exceptions) who were physically present within the Republic of Botswana, the Kingdom of Eswatini, the Kingdom of Lesotho, the Republic of Malawi, the Republic of Mozambique, the Republic of Namibia, the Republic of South Africa, and the Republic of Zimbabwe during the 14-day period preceding their entry or attempted entry into the United States.
Excerpt:

The national emergency caused by the coronavirus disease 2019 (COVID-19) outbreak in the United States continues to pose a grave threat to our health and security. As of November 26, 2021, the United States has experienced more than 47 million confirmed COVID-19 cases and more than 773,000 COVID-19 deaths. It is the policy of my Administration to implement science-based public health measures, across all areas of the Federal Government, to act swiftly and aggressively to prevent further spread of the disease.

On November 24, 2021, the Republic of South Africa informed the World Health Organization (WHO) of a new B.1.1.529 (Omicron) variant of SARS-CoV-2, the virus that causes COVID-19, that was detected in that country. On November 26, 2021, the WHO Technical Advisory Group on SARS-CoV-2 Virus Evolution announced that B.1.1.529 constitutes a variant of concern. While new information is still emerging, the profile of B.1.1.529 includes multiple mutations across the SARS-CoV-2 genome, some of which are concerning. According to the WHO, preliminary evidence suggests an increased risk of reinfection with this variant, as compared to other variants of concern. Further, the WHO reports that the number of cases of this variant appears to be increasing in almost all provinces in the Republic of South Africa. Based on these developments, and in light of the extensive cross-border transit and proximity in Southern Africa, the detection of B.1.1.529 cases in some Southern African countries, and the lack of widespread genomic sequencing in Southern Africa, the United States Government, including the Centers for Disease Control and Prevention (CDC), within the Department of Health and Human Services, has reexamined its policies on international travel and concluded that further measures are required to protect the public health from travelers entering the United States from the Republic of Botswana, the Kingdom of Eswatini, the Kingdom of Lesotho, the Republic of Malawi, the Republic of Mozambique, the Republic of Namibia, the Republic of South Africa, and the Republic of Zimbabwe. In addition to these travel restrictions, the CDC shall implement other mitigation measures for travelers departing from the countries listed above and destined for the United States, as needed.

Given the recommendation of the CDC, working in close coordination with the Department of Homeland Security, described above, I have determined that it is in the interests of the United States to take action to suspend and restrict the entry into the United States, as immigrants and nonimmigrants, of noncitizens of the United States (“noncitizens”) who were physically present within the Republic of Botswana, the Kingdom of Eswatini, the Kingdom of Lesotho, the Republic of Malawi, the Republic of Mozambique, the Republic of Namibia, the Republic of South Africa, and the Republic of Zimbabwe during the 14-day period preceding their entry or attempted entry into the United States.

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(f) and 1185(a), and section 301 of title 3, United States Code, hereby find that the unrestricted entry into the United States of persons described in section 1 of this proclamation would, except as provided for in section 2 of this proclamation, be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions.

Read in full here.

 

So CA/OCS May Survive a Funding Crunch Only to Fall Apart at the Seams?

 

The largest public facing bureau of the State Department is the Bureau of Consular Affairs. For those who may need more familiarity, the major sub-divisions within this bureau are passport services (PPT), visa services (VO) and overseas citizen services (OCS). The identification and repatriation of remains of Americans overseas are handled by OCS. Evacuations of American citizens during natural disasters and civil unrest are also handled by OCS.  When somebody goes missing overseas, or becomes a victim of crime, these cases are handled by CA/OCS. In addition to the recent Afghanistan evacuations, the bureau also managed the massive COVID repatriation around the globe.
Consular operations are mostly fee-based; you pay for visa processing, passport issuance, notarial services and so on.  With the Trump travel bans and the subsequent COVID travel restrictions, passport and visa fee collection significantly cratered. At the same time, CA undertook two massive repatriation and evacuation.
In a congressional hearing in 2020, the State Department projected a $1.4 BILLION loss which was about 50 percent of Consular Affair’s revenue in the fiscal year ending September 30, 2020. It also projected comparable losses in FY2021 and FY2022. We’re sure the numbers are available internally, but we have yet to see publicly the cost of the global COVID repatriation and the Afghanistan evacuation.
During that same 2020 hearing, CA’s top official told Congress that services for American citizens “will not be put out of business.” We’re now wondering if the OCS directorate was saved from the funding crunch only to fall apart at the seams. Let’s consider a few things that we’ve learned:
STAFFING
–The Deputy Assistant Secretary of State (CA/OCS – DAS) recently sent a memo to staff acknowledging that the long hours and lack of sleep has taken an “unacceptable health toll”.
— The  Director of the Office of American Citizens Services and Crisis Management (CA/OCS/ACS) abruptly retired, reportedly one year into a two year tour and only months after making the Senior Foreign Service.
— The Managing Director of CA/OCS took a week off after acknowledging to the staff that the MD’s well-being had been put at risk, and indicated the need for some time off “to regroup.”
— Several of the staff who flew into Afghanistan are reportedly still struggling with what they saw.
— Staffers who made the thousands of phone calls to US citizens in Afghanistan have reportedly been traumatized by what they hear.
— During the inbound call phase early in the operation these staffers reportedly “suffered abuse at the hands of the US public, self-identified military callers who blamed the Task Force for Afghans left behind, and congressional staff who called in to yell at phone bank workers.”
A FOREVER TASK FORCE AFTER THE END OF A FOREVER WAR
— The Task Force continues – until when?
— “We are still staffing 24 hour task force support, which is just wearing people out.”
LEADERSHIP OBSESSES OVER NUMBERS AS EXHAUSTION BITES
— The Leadership is reportedly “totally focused” on the numbers. “All that matters in the Bureau is the number of people called, put on lists, and flown out.  Getting everyone out who wants out is a great goal, but from the top it is clearly just numbers.”
— “A/S and PDAS are only focused on this, basically never in SA17. Everyone is exhausted.”
— Somebody noted to us that “The idea that “around 100″ citizens remain in Afghanistan is absurd, as we never knew how many were there in the first place. And if it is such a low number who are posts from Mexico to Pakistan calling?”  Initially these posts were apparently calling the same folks who had reached out to the US over and over to try to determine who is ready to go. It was relayed to us that most of the times, State didn’t actually have a flight for them to get on or a solution to their problems (no passport, can’t leave family), leading to some testy exchanges.
— Department leadership allegedly “appears blind to the fact that the obsession with getting the number of American Citizens  in Afghanistan to zero has crippled OCS.”
For those who agree that the US should rightfully obsess in a zero AmCit number in Afghanistan, we should point out that the United States left thousands of U.S. citizens stranded in Yemen in 2015 and the show ponies in Congress did not care to interrupt their beauty sleep. (see Stranded in Yemen: Americans left to find own way out, but exactly how many more AmCits are left there?Yemen Non-Evacuation: Court Refuses to Second-Guess Discretionary Foreign Policy DecisionsFor U.S. Citizens in Yemen, a New Website and a New Hashtag Shows Up: #StuckInYemen).
REALITY CHECK
— “CA is ill prepared to continue on this path, and a second major crisis would be almost impossible for the Bureau to address.”
— “CA and OCS people need a break.”
— “COVID is still an issue around the world, regular OCS work doesn’t go away, so fewer people have to handle that and these are the same people that did the COVID repatriations.”
— “It’s not just OCS though, the SIV cases are still out there, and posts everywhere are short staffed, tired, and working under a variety of local restrictions”
— “CA needs what it always needs: money, staff, training, and a Department leadership that values more than a visa referral or a quote for the Secretary.”
Well, now you know.
How soon before we hear about the leadership tenets and taking care of people?

 

Related posts:

 

 

Court Orders @StateDept to “Undertake Good-Faith Efforts” on Diversity Visa Processing by 9/30/21

 

Via travel.state.gov
On September 9, 2021, the U.S. District Court for the District of Columbia preliminarily enjoined the Department of State from applying the November 2020 prioritization policy guidance to diversity visa (“DV”) 2021 applicants and ordered the Department to undertake good-faith efforts to expeditiously process DV applications (including derivative beneficiaries) by September 30, 2021.  The court stated that the Department may not rely on the November 2020 prioritization guidance to “foreclose or prohibit embassy personnel, consular officers, or any administrative processing center (such as the KCC) from processing, reviewing, or adjudicating a 2021 diversity visa or derivative beneficiary application” and clarified that the order “does not affect the prioritization scheme as to any other visa category or in any other respect.”  The court further explained the order “does not prevent any embassy personnel, consular officer, or administrative processing center from prioritizing the processing, adjudication, or issuance of visas based on resource constraints, limitations due to the COVID-19 pandemic, or country conditions.”
In accordance with the order, the Department of State has instructed consular sections to make every effort within their discretion and subject to posts’ resource constraints, limitations due to the COVID-19 pandemic, and country conditions to prioritize the scheduling and adjudication of additional DV-2021 cases by September 30, 2021.  It is important to note that the court did not order the Department to “prioritize DV-2021 applications over other visa applications.”  The court also did not order the Department to prioritize the adjudication of DV-2021 applications of plaintiffs who have sued the Department over the DV-2021 applications of non-plaintiffs.  The court further said that posts do not have to “drop everything and process DV-2021 applications.”
In accordance with the requirements in the Immigration and Nationality Act and applicable regulations, DV cases will continue to be processed in rank order as required by law, and applicants must be documentarily qualified, have paid all requisite application fees, be able to obtain the required medical exam by a panel physician, and demonstrate that they are eligible for a visa before visa issuance.  DV-2021 applicants may be issued a visa through the end of the fiscal year, on or before September 30, 2021.
If a consular section has the capacity to schedule your DV-2021 case, you will receive a notification by email to check the Entrant Status Check site.  Many diversity visa processing posts are getting emails directly from diversity visa applicants.  The Department has instructed posts to respond to those general inquiries about the September 9th Order and DV-2021 processing with the following message:  We are aware of the court order dated September 9, 2021 from the U.S. District Court for the District of Columbia regarding the 2021 diversity visa (“DV”) program.  In accordance with that order, post is making good-faith efforts to expeditiously process DV applications (including derivative beneficiaries) by September 30, 2021.  We will continue to process DV cases in rank order as required by law, subject to our resource constraints, limitations due to the COVID-19 pandemic, and country conditions.  If post has the capacity to schedule your case, you will receive a notification by email to check the Entrant Status Check site.”
See GOH et al v. U.S. DEPARTMENT OF STATE et al

 

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CDC Requires COVID-19 Vaccination For Immigrant Visa Applicants Effective 10/1/21

 

Via CDC: CDC Requirements for Immigrant Medical Examinations: COVID-19 Technical Instructions for Panel Physicians:

The current pandemic of Coronavirus Disease 2019 (COVID-19) has been determined by the World Health Organization (WHO) to be a public health emergency of international concern (PHEIC) under the International Health Regulations. COVID-19 meets the definition of a quarantinable communicable disease under 42 USC 264 and Executive Order 13295, as amended by Executive Order 13375 and 13674. Specifically, COVID-19 meets the definition of severe acute respiratory syndromes as specified by Presidential Executive Order 13674external icon (issued July 31, 2014), thus making it a Class A Inadmissible Condition.

Applicants, defined in these Technical Instructions as people applying for immigrant or refugee status, as well as non-immigrants who are required to have an overseas medical examination, are medically screened days or weeks prior to travel to the United States (US). Thus, a negative screening for COVID-19 at the time of the medical evaluation does not guarantee the applicant will not have COVID-19 at the time of immigration to the United States.

A combination of vaccination, strategic testing, and routine infection control practices will provide the best protection from COVID-19 for applicants and US communities. These instructions provide requirements for COVID-19 vaccination and testing for applicants.  The Instructions in this document are to be followed for COVID-19 when assessing applicants from all countries.  These Technical Instructions are effective from October 1, 2021 until the Centers for Disease Control and Prevention (CDC) determines these Technical Instructions are no longer needed to prevent the importation and spread of COVID-19.
[…]

Other reasons why an applicant might not complete a COVID-19 vaccine series:

  • Applicant may request a waiver based on religious or moral convictions
    If an applicant objects to vaccination based on religious or moral convictions, it must be documented that the applicant is requesting an individual waiver based on religious or moral convictions. This is not a blanket waiver. The applicant will have to submit a waiver request to US Citizenship and Immigration Services (USCIS). USCIS will determine if this type of waiver is granted, not the panel physician or CDC.
  • Applicant refuses a COVID-19 vaccine series in part or entirety
    If an applicant refuses one or more doses of an approved COVID-19 vaccine series that is medically appropriate for and available to the applicant, it should be documented that the vaccine requirements are not complete and that the applicant refuses vaccination. This applicant is Class A and is inadmissible to the United States.

Read the entire guidance here.

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@StateDept Announces Tiered Approach in Immigrant Visa Prioritization

 

Via travel.state.gov:
As noted in our recent visa services operating status update, the Department of State is committed to sharing the current status of our worldwide visa operations.  As part of that effort, we would like to clarify how our embassies and consulates are prioritizing immigrant visa applications, as the Department works to reduce the backlog of such applications resulting from travel restrictions and operational constraints caused by the global COVID pandemic.
The health and safety of our personnel, U.S. citizens seeking assistance abroad, individuals seeking immigration benefits, and local populations is paramount.  Posts that process both immigrant and nonimmigrant visas are prioritizing immigrant visa applications while still providing some nonimmigrant visa services.  However, the volume and type of visa cases each post will process continues to depend on local conditions, including restrictions on movement and gathering imposed by host country governments.  In addition, consistent with U.S. government guidance on safety in the federal workplace, U.S. embassies and consulates have implemented social distancing and other safety measures, which have reduced the number of applicants consular sections are able to process in a single day.  Consular sections will resume providing all routine visa services as it is safe to do so in that particular location.
[…]
Consistent with those objectives, U.S. embassies and consulates are using a tiered approach to triage immigrant visa applications based on the category of immigrant visa as they resume and expand processing.  While our consular sections, where possible, are scheduling some appointments within all four priority tiers every month, the following lists the main categories of immigrant visas in priority order:
      • Tier One: Immediate relative intercountry adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to their age), certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government), and emergency cases as determined on a case-by-case basis.
      • Tier Two:  Immediate relative visas; fiancé(e) visas; and returning resident visas
      • Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad
      • Tier Four: All other immigrant visas, including employment preference and diversity visas
Many embassies and consulates continue to have a significant backlog of all categories of immigrant visas.  This prioritization plan instructs posts to maximize their limited resources to accommodate as many immediate relative and fiancé(e) cases as possible with a goal of, at a minimum, preventing the backlog from growing in these categories and hopefully reducing it.
Read the full announcement here.
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“Long COVID” as a Disability Under the Americans with Disabilities Act, Section 504, and Section 1557

 

 

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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US Embassy Bangkok: Overseas Americans and COVID Vaccines

Thank you to the 504 readers and supporters who made our continued operation possible this year. Raising funds for a small outlet that is already open and free for all to read has often been the most challenging part of running  this blog. We are grateful for your support and well wishes. Merci, Grazie — DS

 

According to the CA bureau, an estimated 9 million U.S. citizens lived overseas. Late last month, Reuters reported that the U.S. Embassy in Thailand “rejects citizens appeal for vaccines.”
Obviously, the decision to fly vaccines to Thailand as reportedly requested by American expatriates in the country (or to 194 other countries where the United States has diplomatic relations) is not something that each individual embassy can decide on. We don’t think this is something that even the State Department can decide on. This is a decision that has to be made by the current administration. And if/when the Biden administration decides that overseas Americans in one country should be vaccinated, it would also need to consider access to vaccines for overseas Americans living in other countries. There will likely be an equity of treatment issue; the USG will either vaccinate all overseas Americans, or it doesn’t.
WorldAtlas.com notes that about 900,000 Americans live in Mexico, some 800,000 in the European Union, and about 740,000 are in Canada. Approximately 700,000 are in India, with some 600,000 living in the Philippines, and about 185,000 in Israel.
What options are there for overseas Americans?
#1. AmCits fly back the the U.S. to get vaccinated as suggested by Embassy Bangkok.  How many of the 9 million overseas Americans will be able to return to the U.S. just to get vaccinated?
#2. Two former political ambassadors to  Thailand and New Zealand wrote a WSJ op-ed claiming that “There are no significant hurdles for the U.S. government to ship Covid vaccines around the world and administer them to Americans living abroad. The State Department confirmed on April 20 that it has sent to each U.S. embassy sufficient vaccines to administer to all American employees. Each embassy also maintains a list of Americans who have registered their contact details, and unregistered Americans could easily be reached through the American communities in each country. All that would be required to administer vaccines in an orderly manner to Americans overseas would be to create an online sign-up system.”
Really? Embassies have MED units typically staffed by a handful of medical professionals; a physician and a couple of nurses if you’re lucky. Consulates typically do not have their own health units. How is the Health Unit at the US Embassy in Manila for example supposed to managed the logistics of vaccinating some 600,000 American expats in the Philippines? Should embassies be authorized to provide vaccinations, it would require additional staff to administer the vaccines, handle an online sign-up system, bio-hazard disposals, security, etc. In the meantime, posts are still expected to continue doing the day to day work they’re tasked to do.
#3. Each embassy advocates for equitable access to vaccines for U.S. citizens in host country, as indicated by US Embassy Bangkok. Obviously, host country would resist the perception that it is favoring expats over its own citizens. So how equitable the access to vaccines for overseas Americans would most likely vary from country to country.
#4. The French Embassy in Thailand has organized a two-month vaccination campaign for French nationals from multiple hospitals in the country, providing the single-dose Covid-19 vaccine for free to those who are 55 years old and older. Reuters reported that China has donated one million vaccine doses to Thailand, with 400,000 earmarked for its nationals. This is probably one reason why overseas Americans are upset; the French and the Chinese are providing vaccination to their overseas nationals while the United States has not. The United States plans to  donate 80 million vaccines worldwide with 25 million doses soon to be released (7 million going to Asia). The United States has earmarked these doses for priority countries but it cannot allocate 9 million out of that 80 million doses for its overseas citizens?
At a May 11, 2021 Press Briefing, the WH spox was asked:

Q    What about Americans overseas?  There is bipartisan groups who are pleading with this administration to help them get vaccinated.  It’s impractical for them to fly back to the United States.  So, are you looking into this?  Anything that the administration can do?

MS. PSAKI:  Well, we certainly do — and as a veteran of the State Department, I can restate that we are quite focused on the health, safety, wellbeing of Americans living all around the world.  We have not historically provided private healthcare for Americans living overseas, so that remains our policy.  But I don’t have anything to predict in terms of what may be ahead.

We are in a once in a lifetime pandemic.
We think that the WH needs to reassess this policy. Just because the USG has not historically provided healthcare to overseas Americans doesn’t mean that should remain the policy as it relates to COVID -19 vaccines.
We can all accept the uniqueness of our times. Our collective grief has marked us forever.   The US government can do more for our overseas nationals. It should. We have already buried over 600,000 of our citizens due to an incompetent federal response. We should not add more to that toll based on a policy that was set in a world before the coronavirus walked our lands.

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US Embassy Kabul on COVID Lockdown, AFSA Calls For Vaccination Requirement For All Staffers

13 Going on 14 — GFM: https://gofund.me/32671a27

 

The US Embassy in Kabul issued a Management Notice for an Immediate COVID-19 Lockdown due to surging cases at post. The notice notes that “95% of our cases are individuals who are unvaccinated or not fully vaccinated.” The notice also says “Failure to abide by the Mission’s COVID policies will result in consequences up to and including removal from Post on the next available flight.”
AFSA has issued a statement calling for the Biden Administration to “take swift action to allow the Department of State to require all personnel, including local employees and third-country nationals, serving at our embassies and consulates abroad under Chief of Mission authority, direct-hire and contract alike, to be fully vaccinated for Covid-19 as a condition of their physical presence in the workplace.” AFSA’s vaccination requirement push includes “for those individuals who cannot get vaccinated due to medical reasons or disability or religious belief or practice.”
Below is the AFSA statement:

Our Embassy in Afghanistan has announced that one employee has died and 114 have been infected with Covid-19. Several employees have had to be evacuated from Afghanistan, and others are being treated in an emergency Covid-19 ward at the Embassy that was created because U.S. military hospital facilities are full. The entire Embassy staff has been put on lockdown and nearly all staff members are confined to their quarters around the clock.

At a time when the U.S. military withdrawal is accelerating, attacks on Afghan and Coalition forces are intensifying and the U.S. is seeking to establish a stable and positive presence in Afghanistan after the withdrawal, the damage to our national security and national interests is potentially grave.

AFSA urges the Biden Administration to take swift action to allow the Department of State to require all personnel, including local employees and third-country nationals, serving at our embassies and consulates abroad under Chief of Mission authority, direct-hire and contract alike, to be fully vaccinated for Covid-19 as a condition of their physical presence in the workplace. The only exceptions would be for those individuals who cannot get vaccinated due to medical reasons or disability or religious belief or practice.    

This has always been a matter of life and death, but now it literally has become exactly that for our members and colleagues serving their country abroad. Recent Federal court rulings have upheld requiring vaccination as a condition of employment in specific situations, such as health care. Service at our embassies and consulates should be treated similarly.

 

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