Court case may have COVID-19 ADA regarded-as implications

Employers need to show that an employee’s condition, including COVID-19 is both transitory and minor to argue against an ADA regarded-as claim.

Posted June 4, 2020

Under the Americans with Disabilities Act (ADA), employees are protected if they have a disability, have a record of a disability, or are regarded as having a disability due to an impairment that is not both transitory (lasting less than six months) and minor (undefined). To successfully argue that an employee is not regarded as having a disability, employers need to be able to show that the perceived condition is both transitory and minor, and not rely solely on the fact that a condition was short-lived. COVID-19 may be relatively short-lived, it might not, however, be considered minor. Relying on only one will not win the day in court.

Case in point

Byron (fictitious name), a truck driver, took two months of medical leave for a lung biopsy and returned to work with no restrictions. About six weeks later, however, he suffered a severe respiratory infection lasting for five days during which Byron used two vacation days. He again returned to work but after his second day back, he was fired.

The employer gave several different reasons for the termination, including performance issues (despite high performance ratings), because Byron did not call in during his infection, and for behavioral issues.

In his claim, Byron argued that the real reason for his termination was because he was regarded as disabled in violation of the ADA; that the company perceived that he suffered from a long-term or chronic condition that would affect his attendance in the future; that the company thought him unreliable, a liability, and unable to perform a wide range of jobs because of what it thought was his continuing medical issues.

The employer argued that Byron did not have protections under the ADA because his condition lasted less than six months.

Not so fast, said the Appeals court. The lower court failed to consider whether Byron’s actual impairment — lung surgery to remove a nodule and test it for cancer — was not minor; it focused only on the duration of the condition. The issue of whether an impairment is “minor” is a separate and distinct inquiry from whether it is “transitory.” The court allowed the case to proceed.

The concept of whether a condition is minor involves consideration of such factors as the symptoms and severity of the impairment, the type of treatment required, the risk involved, and whether any kind of surgical intervention is anticipated or necessary — as well as the nature and scope of any post-operative care. A broken pinky finger, for example, is hardly comparable to surgically removing a lung nodule. The latter involves surgery on a vital organ (which is, by definition, an invasive procedure) and all the risks and post-operative care this inevitably entails

What does this have to do with COVID-19? If employers take a negative employment action against an employee because the employee has the virus, the employee could have a claim that they were regarded as being disabled, since the disease is likely not minor, even if it does not last that long.

The EEOC has indicated that COVID-19 could be a disability; like so many issues related to the outbreak, the answer is yet unclear.

Eshleman v. Patrick Industries, Inc, Third Circuit Court of Appeals, No. 19-1403, May 29, 2020.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.

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