A U.S. District Court in Alabama recently addressed whether COVID-19 can be a disability under the Americans with Disabilities Act (ADA). Brown v. Roanoke Rehabilitation & Healthcare Center, No. 3:2021cv00590 – Document 22 (M.D. Ala. 2022).
In the summer of 2020, Lucious Brown was terminated from her position as a certified nursing assistant for failing to report to work on the 13th day of a 14-day COVID-19 isolation period. At the time of termination, Brown alleged she continued to suffer from severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes, all of which she contended were caused by COVID-19.
On June 29, 2020, Brown visited her physician for a COVID-19 test because she was experiencing telltale symptoms of the contracting the virus. The doctor ordered Brown to self-isolate while awaiting test results. At this relatively early point in the pandemic, and consistent with CDC guidance, Roanoke’s policy required employees who tested positive for COVID-19 to quarantine for 14 days before returning to work.
On July 7, 2020, seven days into the isolation period, Brown’s supervisor instructed Brown to report to work for another COVID-19 test. Brown explained she was still quarantining as her physician instructed, and that she was still experiencing severe symptoms. Brown’s supervisor repeated the instructions to report to work two more times, on July 10 and July 11. Brown was told that if she did not report to work on July13 she would be considered a voluntary quit. When Brown did not return to work because she was still in her isolation period and was still experiencing severe symptoms, her employment was terminated.
Brown subsequently sued and included claims for violations of the ADA. Roanoke moved to dismiss the ADA claims, arguing that “a positive Covid-19 test and the symptoms Brown alleges are not sufficient to show that she was disabled within the meaning of the ADA, or that she was regarded as disabled.” The ADA defines “disability” as either (1) a physical or mental impairment that substantially limits one or more major life activities of such individual; (2) having a record of such an impairment; or (3) being regarded as having such an impairment. Citing the statutory requirement to construe the term “disability” broadly, in favor of coverage, the Court found that Brown adequately pled that she had a disability and that Roanoke regarded her as having a disability at the time of termination.
Assuming the truth of Brown’s allegations, as required at the motion to dismiss stage, the Court found that Brown adequately pled that she had a disability. The Court cited guidance from the Department of Health and Human Services and the Department of Justice concluding that COVID-19 may be a physical or mental impairment under the ADA, and that certain forms of COVID-19 can substantially limit a life activity, such as respiratory function and brain function, even months after infection. Likewise, the Court noted, EEOC guidance provides that COVID-19 may or may not be an ADA disability. According to the EEOC, asymptomatic individuals or those with mild symptoms would not have an ADA disability, but those with sufficiently severe COVID-19 related impairments may be covered by the ADA. The Court found that Brown’s alleged symptoms were sufficiently severe that they could interfere with major life activities such as breathing, thinking, concentrating, performing manual tasks, and working.
Roanoke also argued that it could not have regarded Brown as disabled at the time of termination, because a person cannot be regarded as disabled if the perceived impairment is transitory and minor. They claimed a COVID-19 diagnosis is transitory and minor because it has an expected duration of six months or less. The Court did not agree for two reasons. First, the Court concluded that the transitory and minor exception is a defense to be proved by defendants rather than an element of a plaintiff’s pleading requirement. In other words, Brown did not have to plead facts showing the transitory and minor defense would fail, and there was about Brown’s allegations of severe symptoms that made it apparent her COVID-19 case was transitory and minor. The Court noted that Roanoke’s argument focused only on the transitory aspect of the transitory and minor exception, while Brown alleged severe symptoms and adequately pled that her impairments were not minor.
This was all at the motion to dismiss stage. Whether the claim survives summary judgment will, of course, be decided under a different standard. But it appears that while a routing COVID-19 diagnosis will not qualify as a disability, a case with severe or lingering symptoms may qualify as a disability under the ADA.