With so many employees having contracted COVID-19, an important legal question for employers and employees alike is whether COVID-19 is a “disability” within the meaning of the Americans with Disabilities Act (“ADA”). In other words, is COVID-19 the sort of condition for which employees are entitled to reasonable accommodations, such as extended leave, flexible work schedules, and remote work arrangements? One might think the answer would be well-settled by now, given that we’re two years into the pandemic. But unfortunately the law often develops well after the circumstances that necessitate it. So too, here: courts are just now grappling with this fundamental question, and the results have not always been consistent.
The bar for establishing a disability under the ADA is not high: a disability arises from “any physical or mental impairment that substantially limits one or more of the major life activities of such individual” (as well as a record of, or being regarded as, having such an impairment). Still, not every medically recognized condition constitutes a disability. There are limits, and just like other conditions, these limitations apply to COVID-19 as well.
For instance, courts and the EEOC generally recognize that COVID-19 will not constitute a disability where the symptoms are both transitory (short-lasting) and minor. This means that an employee is not disabled who merely tests positive but is asymptomatic, or whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of days or weeks (with no other consequences). But what should be the result where the symptoms are short-lasting but very severe? On this point courts have differed, as two recent cases illustrate.
Consider first Brown v. Roanoke Rehab. & Healthcare Ctr., No. 3:21-CV-00590-RAH, 2022 U.S. Dist. LEXIS 30548 (M.D. Ala. Feb. 22, 2022). In this case, the employer fired an employee 13 days into her 14-day COVID-19 isolation period. The employee alleged that her symptoms, including “severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes,” substantially limited major life activities such as working, breathing and concentrating. The Court found that the employee had sufficiently alleged an ADA disability, despite no indication that the symptoms were expected to persist. According to this court, transitory COVID-19 symptoms are only excluded from ADA coverage if the symptoms are also minor.
In Baum v. Dunmire Property Mgt., however, another court reached the opposite conclusion. 2022 U.S. Dist. LEXIS 54555 ( D. Colo. Mar. 25, 2022). There the individual (the plaintiff’s father) died just 15 days after testing positive for COVID-19, as a result of “acute respiratory distress syndrome, bilateral pneumonia, and COVID-19.” Nonetheless, the court concluded that this individual was not disabled, explaining: “The ADA contemplates long-term disabilities that impair major life activities. Illness that are transitory in nature are not disabilities within the meaning of the ADA. … Although Plaintiff’s father died, his illness lasted for only 15 days. Such an acute, short-term illness is too transitory in nature to constitute a disability under the ADA.” (emphasis added).”
The key takeaway is that whether COVID-19 is or is not a disability is necessarily a case-by-case analysis, depending on the employee’s symptoms and prognosis. If the employee’s symptoms are non-existent or very minor, the employee is not likely disabled. If the employee’s symptoms are severe and long-term, the employee likely is disabled. And where the symptoms are acute but short-term, the answer is less certain—for now—especially as courts are still trying to reconcile the condition’s potentially serious nature with the fact that it has affected millions of people. Compare Champion v. Mannington Mills, Inc., 538 F. Supp. 3d 1344, 1349 (M.D. Ga. 2021) (explaining that to find millions of Americans “disabled” under the ADA would lead to absurd results) with Booth v. GTE Fed. Credit Union, No. 8:21-cv-1509-KKM-JSS, 2021 U.S. Dist. LEXIS 224333 (M.D. Fla. Nov. 20, 2021)) (analyzing the lack of consensus regarding whether COVID-19 is a disability under the ADA).
We will continue to monitor the case developments closely. In the meantime, where the disability answer is not clear, employers can usually mitigate their risk best by assuming that the diagnosis is a disability and engaging in the interactive process to determine whether a reasonable accommodation is appropriate. On this point, employers should remember that while disabled employees are entitled to reasonable accommodations, employers are not required to: (1) remove essential job functions, including in-person attendance if applicable, (2) grant indefinite leave, (3) lower production standards, (4) provide any accommodation that creates an undue hardship, or (5) provide an employee’s preferred accommodation, as long as the accommodation that is provided is effective.