As the COVID pandemic continues, and an increasing number of employees have contracted the virus, there are many potential employment issues surrounding an employee’s positive test result. At the outset of the pandemic, many states and local governments imposed rules on employers requiring mandatory isolation and/or quarantine of employees who tested positive or were exposed to COVID.
Over time, those restrictions have changed or lifted in most areas, but the legal issues remain. In fact, in some cases the path for employers is more complicated by the lack of governmental requirements. Should employees be granted time off for having contracting COVID, and if so, how much? Are such employees entitled to FMLA leave? Is COVID a disability under the ADA requiring the employer to consider reasonable accommodations? A federal court in Alabama recently weighed in on one of the key issues regarding an employee’s COVID diagnosis – application of the ADA.
In the case at issue, the employee tested positive for COVID and was ordered by her doctor to isolate for 14 days (consistent with CDC requirements at the time). The employer terminated the employee’s employment on the 13th day of isolation, when she refused to return to work before the 14-day isolation period ended. The employee filed suit alleging, among other claims, that her employer violated the ADA by refusing to grant her leave as an accommodation.
A motion to dismiss the case brought the question to the Court: Does a COVID diagnosis count as a disability under the ADA?
In its defense, the employer argued that the employee’s COVID diagnosis was not a disability under the ADA and that the employee had not alleged that her condition substantially limited a major life activity, as required by the law. The employee contended that her symptoms, which allegedly included “severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes,” did substantially limit major life activities. The Court agreed with the employee, engaging in an analysis under the ADA in concluding that the employee alleged symptoms that substantially limited her ability to breathe, concentrate, and work, all major life activities. As a result, the Court determined that COVID could be disability in certain circumstances, depending on the severity of the employee’s symptoms.
In its opinion, the Court was clear that not all cases of COVID will constitute a disability under the ADA. Those employees with very mild or no symptoms may have no limitations to their major life activities. The key take away for employers is that whether COVID is or is not a disability will be a case-by-case analysis depending on the employee’s symptoms. If the symptoms limit the employee’s ability to work, the employer should consider the diagnosis a disability and engage in the interactive process with the employee to determine whether a reasonable accommodation (including leave) can be granted.
Employers should resist the impulse to automatically consider COVID a short-term minor illness, like a cold, that would not have ADA implications. As local requirements for leave are repealed or have expired, employees needing leave due to COVID symptoms may be more likely to turn to the ADA to provide time off while they are sick. As this case shows, COVID can, in some cases be a disability. If it is, employers should treat it accordingly by engaging in the interactive process.