Suppose an employee tests positive for COVID-19 or asks for leave to quarantine. One could argue that a worker who tests positive for COVID-19 is a "direct threat" to the workplace because of the contagious nature of the disease. One could also argue that granting leaves to large numbers of persons creates an "undue hardship" for the employer. Although common illnesses such as the cold and the flu are not disabilities under the Americans With Disabilities Act (ADA) because they are temporary and minor, the EEOC and the courts are currently grappling with whether COVID-19 is a disability and if so, how it fits within the ADA framework, including the direct threat and undue hardship principles.
When facing issues relating to COVID-19 and related illnesses, employers should first remember that the FMLA is still around, and if the employee has been employed for a year and worked the requisite number of hours, and if the employer is of sufficient size, the generally applicable rules under the FMLA apply. Addressing COVID-19 under the ADA, however, is not as clear cut. In December of 2021, the EEOC issued guidance stating that not every person with COVID-19 will qualify for ADA protection, but some will.
The EEOC Guidance makes clear that each case must be considered individually and that employers should begin by considering whether a particular person fits within one of the ADA’s three prongs of the definition of a disability. Under the ADA, a person has a disability if (1) they have a physical or mental impairment that substantially limits a major life activity; (2) an employer regards the individual as having a disability; or (3) the individual has a record of having a disabling impairment. More specifically, a person is regarded as having a disability if they have or are regarded as having an impairment, regardless of whether the employer regards the impairment as substantially limiting a major life activity, unless the impairment is objectively transitory (lasting or expected to last less than six months) and minor. Although the "regarded as" prong of the ADA definition is rarely used, it will likely become more common in COVID-19 cases, with employees arguing an employer took an action against them because the employer regarded the employee as being disabled. Employers will argue that the virus is transitory and minor and, therefore, the employer could not have regarded the individual as having a disability. Employers will likely also argue that because COVID-19 is highly contagious it poses a direct threat in the workplace and/or that allowing an employee to work would impose an undue hardship on the employer. All this shows that employers are left with a great deal of uncertainty. Despite this uncertainty, cautious employers will focus more on trying to resolve the problem an employee is facing due to COVID-19 through the interactive process rather than debating the legal issue of whether COVID-19 is a disability. Doing so is especially important since "long-haul" COVID symptoms can last a long time and thus cannot be considered temporary and minor. Further, in today’s market, employers desperately need to retain employees and doing so requires that employers respect their workforce and are perceived by workers to be fair.
This is part of our February 2022 Newsletter.
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