Near the beginning of the pandemic, an employee in New Jersey reported to work but felt ill; specifically, he felt “cold, clammy, and weak.” After going home, the employer told him not to return until he tested for COVID-19. The next day, the plaintiff went to a free clinic where he obtained a COVID-19 test. While waiting for the results, the employee reported to his employer that he felt better, and offered to return to work, maintaining social distance from others. The employer fired him instead.
Is this disability discrimination?
The employee thought so, alleging disability discrimination under New Jersey’s Law Against Discrimination (LAD). For those of you who don’t practice law or operate a business in New Jersey, think of the LAD as an employee-friendlier version of most federal anti-discrimination laws, including the Americans with Disabilities Act.
Like the ADA, the LAD covers physical and mental disabilities. For a physical disability claim under the LAD, a plaintiff must show they are: “(1) suffering from physical disability, infirmity, malformation or disfigurement (2) which is caused by bodily injury, birth defect or illness including epilepsy.” While the legislature has amended the LAD over time to include specific medical conditions like epilepsy and AIDS or HIV infection, it never did so for COVID-19.
And there’s a good reason why New Jersey didn’t specify COVID-19 as a disability. Because most of the time, it isn’t.
The U.S. Equal Employment Opportunity Commission concurs that COVID-19 isn’t always a disability. “[S]omeone infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to the common cold or flu that resolve in a matter of weeks—with no other consequences—will not be substantially limited in a major life activity for purposes of the ADA.” Even the plaintiff conceded as much under the LAD.
Unfortunately for the plaintiff, the New Jersey Appellate Division felt the same way. The court did recognize that the LAD’s definition of disability wasn’t limited to severe or immutable disabilities. But it was “equally cognizant of the Supreme Court’s directive that the LAD must be sensibly and practically applied and construed fairly and justly with due regard to the interests of all parties.” (cleaned up).
Let’s look at our plaintiff here. One day, he felt “cold, clammy, and weak.” The next day, he felt well enough to return to work and even offered to do so. Sounds like a common cold or flu to me rather than the type of infirmity that the legislature intended for the LAD to protect.
But, a word of caution for employers. Determining whether a specific employee’s COVID-19 is an actual disability always requires an individualized assessment, and employers should not make them categorically. Indeed, it is very possible that long COVID could check all of the boxes to qualify as a disability under state law and the ADA. Along those lines, I encourage you to familiarize yourself with this EEOC resource.