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COVID-19 v. Long Covid – Which Is a Disability Under the ADA?


Since COVID-19 struck in January 2021, pandemic-related litigation has congested courts across the country, with some claims raising novel issues. As of September 2021, over 12,000 COVID-19-related complaints had been filed. California, for example, has seen a total of 2,216 filed in state and federal courts, more than any other state (and multiples more than most). Of the total number of complaints filed nationally, lawsuits alleging labor and employment claims have gained the most traction, with approximately 3,655 filed and counting. These comprise over one-fourth of COVID-19-related litigation, with wrongful termination the theory most frequently pursued, followed by discrimination, wage and hour, leaves of absence and retaliation. This is unsurprising given the massive country-wide temporary shutdown of thousands of businesses across all industries, affecting millions of workers many of whom, for the first time in their careers, faced furloughs and layoffs.

At the core of some of these employment-related lawsuits is an issue of first impression: whether contracting COVID-19 qualifies as a disability under the Americans with Disabilities Act of 1990 (ADA). This is a question with significant legal implications. If it is, employers must reasonably accommodate every employee who contracts it, and this could challenge the stability of the American workplace. If it isn’t, some ill people needing time to recover and who refuse to return to work may find themselves unemployed, particularly as more virulent strains of the disease breakthrough vaccines. This article explores whether employees who have contracted COVID-19 qualify as disabled under the ADA. An assessment of the provisions of the ADA, the CDC’s comparison between COVID-19 and the flu, and a Georgia court suggest not. However, joint guidance from Health and Human Services (HHS) and the Department of Justice (DOJ) makes a distinction between individuals who recover within a few weeks and individuals who continue to suffer long-term effects, which they refer to as “long Covid.” Long Covid may be viewed as a disability under the ADA.

The Americans with Disabilities Act

The ADA is a comprehensive civil rights law that protects employees with disabilities in many contexts, one of which is employment. Congress amended the ADA in 2008 to make clear that it “intended for the term ‘disability’ to be interpreted broadly, in order to provide a national mandate to end discrimination against people with disabilities.” The ADA prohibits employers from discriminating against qualified individuals with a disability. The ADA defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such an impairment.

The regulations interpreting the ADA provide a list of impairments that will “as a factual matter, virtually always” be disabilities because of their effect on major life activities. These impairments include deafness, blindness, intellectual disabilities, anatomical loss requiring the use of a wheelchair, autism and epilepsy, among others. Temporary impairments such as pregnancy, broken bones or the flu are not covered by the ADA.

CDC Distinguishes between COVID-19 and Influenza

The Centers for Disease Control and Prevention (CDC) seems to suggest that contracting COVID-19 is tantamount to catching the influenza virus, albeit in a much more severe form. According to the CDC, the flu and COVID-19 are both contagious respiratory illnesses but caused by different viruses. Severe acute respiratory syndrome coronavirus 2, or SARS-CoV-2, is the virus that causes COVID-19, while infection with influenza viruses causes the flu. The flu and COVID-19 share similar symptoms (cough, muscle aches, tiredness, sore throat, stuffy or runny nose, fever, and shortness of breath or difficulty breathing). COVID-19 and the common cold also share symptoms. Neither contracting the flu nor a cold is considered a disability under the ADA. Thus, one could reasonably conclude that if COVID-19 is a respiratory virus like the flu or a cold, then contracting COVID-19 is likewise not a disability under the ADA.

Georgia Court Finds that COVID-19 Is Not a Disability Under the ADA

This year, a Georgia federal court for the first time held that contracting COVID-19 is not a disability under the ADA. In the case of Jaquaishala Champion v. Mannington Mills, Inc., a United States District Court dismissed a lawsuit in which Jaquaishala Champion claimed her brother’s case of COVID-19 qualified as a disability under the ADA.

Champion and her brother worked for defendant Mannington Mills in Madison, Georgia. After her brother tested positive for the virus, the Mannington Mills tried to conduct contact tracing to find whether others had been exposed. During her interview with company personnel, Champion denied having contact with her brother during the relevant time period. However, other employees reported seeing Champion speaking to her brother in person a few days before he tested positive. Champion claimed she had forgotten about the conversation. Mannington Mills terminated her employment, accusing her of dishonesty.

Champion sued Mannington Mills claiming association disability discrimination in violation of the ADA. She argued that COVID-19 is a disability under those statues and her employer had fired her for associating with her disabled brother, an action the law prohibits. She alleged that her brother’s COVID-19 diagnosis qualified as a disability because it was a “physical or mental impairment that substantially limits one or more major life activities of such individual.” Work is a major life activity under the ADA. Champion first claimed that her brother left work to go to the emergency room when he began experiencing COVID-19 symptoms. That, she argued, showed his inability to work making him disabled as defined by the ADA. She next alleged that her brother was substantially limited in his ability to communicate because he was unable to maintain in-person communications. However, she never identified any of his alleged symptoms.

Mannington Mills filed a motion to dismiss the lawsuit, arguing that Champion failed to state a claim under the ADA. The company argued that the plaintiff’s brother was not “disabled” as defined by it. Manning Mills focused on Champion’s allegation that COVID-19 “can impact the respiratory system, immune system, and nervous system, and some people develop acute respiratory distress syndrome.” It then argued that she never alleged that her brother experienced any of these conditions. Testing positive for the COVID-19 virus is not the same thing as experiencing symptoms of it. The court agreed with Manning Mills, rejecting Champion’s “legally-flawed position that anyone alleged to have COVID-19 is ‘disabled’” as the ADA defines that term. The court noted that the ADA considers a person “disabled” if that person has a “physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1). Although her brother may have missed several days of work due to his infection, “that bare allegation, without more, does not rise to the level of a ‘disability.’” In addition, Champion did not explain how the virus substantially limited a major life activity, and the court found that failure to allege even a single symptom that her brother suffered undermined her case. If Champion’s argument were correct, “then employers across the nation will be shocked to learn that if any of their employees are sick for just a few days, then those employees are ‘disabled’ and now protected by the ADA.”

The court also rejected Champion’s argument that her brother was substantially limited in his ability to communicate. The court stated that if that were true, then “any of the millions of Americans who quarantined, including those without COVID-19, those infected but asymptomatic, and those who were seriously ill, were suddenly ‘disabled’ under the ADA.”

Finally, the court concluded that the fact her brother may have been “regarded as” disabled was not enough for Champion to state a claim for association-discrimination. The court noted that “an association-discrimination claim like [plaintiff’s] cannot be based on a plaintiff’s association with a person merely regarded as disabled,” because “association discrimination consists of discrimination based on one’s association with a person who has a ‘known disability.’” Because Champion was unable to successfully prove that her brother was disabled, her argument that Mannington Mills discriminated against her because she associated with him must also fail. The court reasoned that “[j]ust because [plaintiff’s brother] stayed home after testing positive for COVID-19, as did millions of other Americans, does not mean that [the defendant] regarded him as disabled, or more importantly, discriminated against [plaintiff ] because she was associated with him.”

“Long COVID”

Though COVID-19 does not qualify as a disability, guidance from the HHS and DOJ, as well as the CDC, suggest that long COVID could qualify as a disability for which an employer must provide reasonable accommodation. On July 26, 2021, the HHS and the DOJ issued their joint “Guidance on ‘Long COVID’ as a Disability, Section 504, and Section 1557.” While it focuses on Title II of the ADA (the section prohibiting discrimination by state and local government) and Title III of the ADA (the section prohibiting disability discrimination in public accommodations and commercial facilities), the guidance provides insight into how courts may analyze a similar issue under Title I (the section of the ADA prohibiting disability discrimination in employment). The guidance acknowledges that “[a]lthough 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…People with this condition are sometimes called ‘long-haulers.’ The condition is known as ‘long COVID.’”

The guidance explains that long Covid can be a disability under Title II and Title III and other federal laws if it substantially limits one or more major life activities. While the guidance provides a definition of long Covid, it fails to explain when COVID-19 may meet the legal definition of “disability.” It also does not address whether individuals who get better within weeks can also be referred to as disabled under the ADA. Finally, the guidance does not address whether COVID-19 is a disability under Title of I of the ADA, which prohibits employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

The CDC considers people with “long COVID” to have a range of new or persisting symptoms lasting weeks or months after becoming infected with COVID-19. The symptoms can worsen with physical or mental activity. Common symptoms of long COVID include tiredness or fatigue, difficulty thinking or concentrating, shortness of breath or difficulty breathing, depression or anxiety, or damage to multiple organs, including the lungs and kidneys.

Conclusion

Considering the provisions of the ADA, the CDC’s assessment of COVID-19 v. the flu, the DOJ/HHS guidance, and the case law to date, one can reasonably conclude that COVID-19 itself is not a disability. However, whether the long-term effects or symptoms of COVID-19 are invites a separate analysis, the result of which would fall squarely within the protections of the ADA. If that were the case, then each request should be reviewed on a case-by-case basis and treated like any other request for an accommodation, which would potentially trigger and employer’s duty to engage in the interactive process. This issue is currently before several courts, and while not definitive, we can expect the court’s ruling in Mannington Mills decision to be instructive.

Practical Recommendations

  • Review each request for an accommodation on a case-by-case basis.
  • Be aware of what medication documentation is permitted and be cautious of overreach. Employers cannot request an employee’s complete medical records. However, employers may request additional information when the disability and/or need for an accommodation are not readily distinguishable.
  • Employers must keep an employee’s medical information confidential. To ensure confidentially, an employee’s medical information should be kept separate and apart from an employee’s personnel file.
  • Document requests and criterion used to analyze and grant/deny a request for accommodation.
  • Consult the CDC and other reputable health resources, as well as government resources such as the EEOC, to remain abreast of new and emerging symptoms. 
  • When in doubt, solicit the assistance of legal counsel.

For more information, please contact Moire Moron at moire.moron@nfp.com.

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