Can a worker claim disability discrimination for COVID-related termination?
The first claims of COVID-related discrimination are starting to be addressed. Here's what employers can expect.
Employment lawyers have been at the epicenter of legal issues related to COVID-19—from the early days when businesses around the world shut down—to the protections of the Families First Coronavirus Response Act—to vaccine mandates, COVID has presented an array of new and challenging employment issues.
Related: COVID ‘long-haulers’ and the battle for disability benefits
Now, the first claims of COVID-related discrimination are starting to be addressed, including the recent decision of Matias v. Terrapin House, No. 5:21-cv-02288, 2021 U.S. Dist. LEXIS 176094 (E.D. Pa. Sept. 16, 2021), in which an employee claimed that she was discriminatorily terminated because she was “regarded as” disabled under the Americans with Disabilities Act and the Pennsylvania Human Relations Act after she advised her former employer of her COVID diagnosis.
Termination after disclosing diagnosis
Ninoshka Matias began her employment with Terrapin House, a residential medical-care facility, in late August 2020. On Nov. 19, Matias texted Terrapin to advise that she felt ill. Terrapin’s representative asked Matias whether she was experiencing any symptoms—to which Matias responded that the felt as though she was losing her senses of taste and smell. Matias advised Terrapin of her positive COVID test on Nov. 22. She was terminated later that day on the grounds that she was not “a good fit.”
Matias’ complaint asserts that she had received no discipline during her roughly three months of employment. Matias initially brought suit against Terrapin for violating the employment provisions of the FFCRA. She subsequently amended her complaint to add claims for violations of the ADA and PHRA based upon Terrapin having regarded her as disabled. Terrapin moved to dismiss these latter two claims.
Initially, the court noted that, while the PHRA and ADA had been interpreted identically before the ADA was amended in 2008, “there is an active split between district courts within the U.S. Court of Appeals for the Third Circuit as to whether the PHRA and ADAAA should be treated as coextensive.” As observed by the court in Szarawara v. County of Montgomery, Civil No. 12-5714, 2013 U.S. Dist. LEXIS 90386 (E.D. Pa. June 27, 2013), “the ADAAA relaxed the ADA’s standard for disability, … but the PHRA has not been similarly amended, necessitating separate analysis of Plaintiff’s ADA and PHRA claims.” However, in McFadden v. Biomedical Systems, Civil No. 13-4487, 2014 U.S. Dist. LEXIS 2363 (E.D. Pa. Jan. 9, 2014), the court found that even after the ADA’s amendment, the statutes were coextensive. Under either standard, however, Matias successfully stated viable claims.
‘Regarded as’ disabled claim
In order to state a claim that she was “regarded as” disabled under the ADA, “the plaintiff would have to show that her employer misinterpreted information about her limitations to conclude that she was unable to perform a wide range or class of jobs.” The court noted that while an adverse employment action taken shortly after learning of an employee’s physical condition “is sufficient to raise an inference of ‘regarded as’ disability discrimination … the ADAAA limits regarded as claims by excluding impairments that are transitory and minor.”
Terrapin argued that it did not regard Matias as having a disability and, “to the extent that Matias can be regarded as having a disability [i.e., COVID], the disability is transitory and minor.”
Significantly, the court noted that in order to establish that a condition is not covered by the ADAAA, an employer must show that the condition was, objectively, both transitory and minor. Simply establishing that the condition was perceived to be transitory and minor would not be enough—nor would it be sufficient to establish that the condition in question was either transitory or minor.
Statistics show COVID not a ‘Minor’ condition
To that end, the court observed that Terrapin argued extensively as to the transitory nature of COVID. To that end, Terrapin “points out that the FFCRA leave period is only two weeks long” and that because Matias was limited to two-weeks of protected leave, COVID was, by definition “transitory.” The court found that it was not required to determine whether COVID was “transitory” because it was not (also) “minor.”
In finding that COVID was not objectively “minor,” the court looked primarily at statistics from the Centers for Disease Control and Prevention (the CDC) as to the number of deaths and persons hospitalized from Aug. 1, 2020, to Sept. 10, 2021. But those statistics, of course, are meaningless without context. For that, the court cited the decision of the U.S. District Court of Minnesota in Valdez v. Minnesota Quarries, No. 12-cv-0801, 2012 U.S. Dist. LEXIS 174265 (D. Minn. Dec. 10, 2012), which addressed the question of whether the Swine Flu was minor by comparing its impact to that of the seasonal flu (which the court observed to be “quintessentially” transitory or minor). And while the Swine Flu’s hospitalization and death rates were similar to those of the seasonal flu—the death rate of COVID was over seven times that of the seasonal flu and the hospitalization rate was in a similar range. “Accordingly, viewed objectively, COVID-19 is not ‘minor’ as the term is contemplated in the ADAAA.”
The message of Matias is clear—while employers may defend COVID-related employment actions as they would other discrimination claims, it is likely that those claims will at least survive preliminary challenges as to viability.
Sid Steinberg is a partner at FisherBroyles, focusing on employment law. His practice involves virtually all aspects of employee relations, including litigation experience defending employers against employment discrimination claims in federal and state courts. He can be reached at sidney.steinberg@fisherbroyles.com.
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