Fortunately, the COVID-19 pandemic is waning. Yet, past workplace incidents are now surfacing in court as COVID-19 discrimination lawsuits. A common thread with many of these lawsuits is an employee with COVID-19 who gets fired and claims disability discrimination.
That begs the question: when is COVID-19 a disability under the Americans with Disabilities Act?
I’ll supply a fact pattern. You grab a gavel, black robe, and perhaps one of those white wigs, and we’ll see what you think.
On June 29, 2020, an employee went to her physician to be tested for COVID-19 because she suffered from “severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes.” While she awaited her test results, her physician directed her to self-isolate. Two days later, on July 1, 2020, the employee’s test results came back positive for COVID-19. The employee promptly provided the physician’s instructions and her positive COVID-19 test result to her employer. And consistent with the employer’s policy, she must isolate for 14 days until July 14, 2020.
The employee continued to experience the same severe symptoms during the isolation period, and the employee remained in isolation. On July 13, the day before the isolation period ended, the company terminated the employee’s employment.
The employee — now let’s call her “plaintiff” — claimed disability discrimination. The employer-defendant moved to dismiss her complaint on two grounds: (1) the plaintiff did not have an actual disability, and (2) it did not regard the plaintiff as disabled.
So, what do you think? Has the plaintiff at least pled that COVID-19 was a disability?
The ADA defines an actual disability as either “a physical or mental impairment that substantially limits one or more major life activities of such individual.” This is a low bar.
Major life activities include breathing, concentrating, thinking, and working. While not binding on courts, the EEOC has said that the ADA may cover persons with “sufficiently severe” impairments from COVID-19 even if those impairments are not “long-term.” Similarly, the Department of Health and Human Services and Department of Justice indicate that certain forms of COVID-19 may be considered a disability under the ADA.
In other cases (like this one), plaintiffs have not credibly pled that their COVID-19 was a disability. But not so here. The plaintiff specifically alleged that she suffered from many serious COVID-19-related symptoms. For example, she alleged that she suffered from severe weakness, difficulty breathing, and brain fog, all of which could substantially limit major life activities like breathing, concentrating, thinking, communicating, performing manual tasks, and working.
Thus, the court concluded that the plaintiff had alleged an actual disability sufficiently.
The court was also satisfied that the plaintiff alleged that the defendant regarded her as disabled. An individual cannot be regarded as having a disability if the impairment is “transitory and minor.” With “transitory,” we’re talking less than six months. But suppose the plaintiff recovered from COVID-19 in a few weeks. She nonetheless told her employer that she was suffering from a severe and symptom-laden bout. That’s not minor. Therefore, the regarded-as claim survives for now too.
Does this mean that the plaintiff will win her case?
Ultimately, she will have to prove her disability, and her employer fired her because of it.
There’s not much now that you can do about COVID-19 incidents from the past two years. Hopefully, your compassion during that span mitigates the risk of a lawsuit. Good documentation is also helpful. Otherwise, you’ll be keeping employment law attorneys like me busy in 2022.