The ADA and other disability laws are unusual civil rights laws. For the most part, only people with disabilities can use it to bring a lawsuit. This is different than other antidiscrimination laws, which allow anyone to bring a suit—a man can claim sex discrimination, for example. But the first question in an ADA case is whether the person bringing it has a “disability” that the law covers.[1]
Legal Definitions
The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” It also includes people who have a “record of” or who are “regarded as” having a disability.[2] Only people with this level of impairment can sue under the ADA, but the law says this is meant to give “broad coverage.”[3]
Local laws may be even broader. For example, the New York City Human Rights Commission has declared COVID-19 to be a “serious illness” covered by New York City’s disability discrimination law.[4]
History of Coverage
Supreme Court cases have affirmed that contagious diseases can be covered disabilities:
- Tuberculosis: A teacher was dismissed for having recurrent TB. The court held that she was covered under Section 504 of the Rehabilitation Act, an earlier law with similar coverage to the ADA. She still had to show she was “qualified”—that she could do the job without endangering others—but the Court rejected the idea that a contagious disease is not a disability.[5]
- HIV: A dentist refused to treat a patient because of her HIV positive status. Even through she was “asymptomatic,” the Court held that she had a disability covered by the ADA. Once again, there had to be further factual findings about safety, but the dentist would have to treat her if it were safe—the ADA made discrimination based on HIV status illegal.[6]
Can an ADA Disability Be Temporary?
Some lower courts have made sweeping statements to the effect that temporary illness or injury, without any long-term effects, does not give ADA rights. Often, these cases are based on an earlier, more restrictive definition of disability. A more recent case from a federal appeals court explains: “[A]n impairment is not categorically excluded from being a disability simply because it is temporary.”[7]
Individual Evaluation
COVID-19 cases vary substantially. Courts are likely to evaluate each situation on its individual facts, rather than rule that COVID-19 is (or is not) a “disability” under the ADA in all circumstances. That uncertainty can be frustrating for all involved. Still, as we have seen above, the ADA covers people with a “record of” a disability—covering those who had COVID-19 and are now recovered—as well as those “regarded as” having a disability.
Hopefully, we can all agree that discrimination based on COVID-19 is neither morally nor legally acceptable and move on to work together in recovering our work, health, and lives.[8]
[1] Professor Mark Weber’s excellent treatise explains this point well. Mark C. Weber, Understanding Disability Law 15 (3d ed. 2019).
[2] 42 U.S.C. § 12102(1).
[3] 42 U.S.C. § 12102(4)(A).
[4] N.Y. City Comm’n on Human Rights, COVID-19 and Human Rights (updated May 11, 2020), at https://www1.nyc.gov/site/cchr/media/covid19.page; see New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-102.
[5] School Bd. of Nassau Cty. v. Arline, 480 U.S. 273 (1987). Congress passed some exceptions for contagious diseases after this, generally consistent with the idea that a serious risk (“direct threat”) justifies excluding someone if the risk cannot be eliminated with reasonable accommodations. See 29 U.S.C. § 705(20)(D); 42 U.S.C. §12113(e)(2).
[6] Bragdon v. Abbott, 524 U.S. 624 (1998).
[7] Summers v. Altarum Insti., Corp., 740 F.3d 325, 333 (4th Cir. 2014). The ADA Amendments Act, which took effect in 2009, substantially broadened the ADA definition of disability in response to a trio of restrictive Supreme Court cases. See Weber, supra n.1, at 21-23. However, some judges still cite older cases for the proposition that the ADA does not cover temporary illness or injury, without analysis of whether they are still good law. See, e.g., Soto v. Marist Coll., No. 17-CV-7976 (KMK), 2019 WL 2371713, at *13 (S.D.N.Y. June 5, 2019) (relying on a 1997 analysis of congressional intent with no discussion of ADAAA).
[8] Lawyers on both sides, those who represent plaintiffs and defendants, are concluding that COVID-19 is likely a covered disability. See, e.g., Disability Rights Texas, Disability Discrimination Now that COVID-19 Is Here (published March 20, 2020), at https://www.disabilityrightstx.org/en/handout/disability-discrimination-at-work-now-that-covid-19-is-here/; Fox Rothschild, LLP, Coronavirus—Workplace Considerations, N.Y.C. Hospitality Alliance (last visited May 27, 2020), at https://thenycalliance.org/information/coronavirus-workplace-considerations.