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On March 27, 2020, the U.S. Equal Employment Opportunity Commission hosted an “Ask the EEOC” webinar exclusively addressing the EEO laws in the time of the COVID-19 pandemic.
One of the questions asked was whether COVID-19 is a disability under the Americans with Disabilities Act.
Here’s what the EEOC said:
Many of you asked is COVID-19 a disability under the ADA? Here is what the EEOC can say now. This is a very new virus and while medical experts are learning more about it, there is still much that is unknown.
Therefore, it is unclear at this time whether COVID-19 is or could be a disability under the ADA….
I agree with the EEOC that COVID-19 may (or may not) be an actual disability under the ADA. An actual disability is a physical or mental impairment that substantially limits one or more major life activities.
But, the ADA doesn’t stop there. There are two other categories of “disability”:
- a record of a physical or mental impairment that substantially limited a major life activity (“record of”), and
- when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”).
“Regarded as” disability.
If one of your employees sues your business alleging that it discriminated against him because he had COVID-19, he’s going to qualify (initially) as having a disability under the “regarded as” prong at the very least.
Consider this Third Circuit decision from last Friday. The plaintiff alleged that his former employer violated the ADA by firing him because it regarded him as disabled for taking two months of medical leave for a lung biopsy procedure and two vacation days for an upper respiratory infection.
The lower court held that the ADA did not cover the plaintiff’s “regarded as” claim because the “regarded as” prong of the ADA excludes explicitly conditions that are “transitory and minor.” The lower court concluded that the plaintiff’s impairment was transitory and minor because it lasted less than six months. Then, the lower court dismissed the ADA claim.
However, the Third Circuit reinstated it.
That’s because while the ADA specifically defines “transitory” as “an impairment with an actual or expected duration of 6 months or less,” the ADA does not apply this definition to “minor.” Indeed, the statute does not define “minor” at all. But, the ADA regulations clearly state that an employer must establish that the perceived impairment is objectively both transitory and minor. Thus, not only is transitory just one element of the test, but also one must determine objectively whether the impairment is or would be ‘transitory and minor.’
COVID-19 as an ADA disability.
So, is COVID-19 a disability? Consider this:
- Actual disabilities do not have a “transitory and minor” carve-out. And while short-term conditions generally don’t qualify as an actual disability under the ADA, courts must construe the statute in favor of broad coverage.
- Even if COVID-19 is not an actual disability, and even if it does last less than six months, there’s a decent chance that COVID-19 is not minor. Even if disputed, that issue will require several months of discovery and a motion for summary judgment to resolve.
Does this mean that you have to allow someone with COVID-19 to come to work? Heck no. That person is a direct threat. But, you may have a duty to accommodate it as an actual disability. (There is no duty to accommodate under the “regarded as” prong.)
Either way, if you fire someone who has or had COVID-19, and that person sues, win or lose, the defense costs alone will make your business feel like COVID-19 is an ADA disability.