Today’s blog entry deals with the situation where a person get Covid-19, goes through most of the quarantine period, and then is fired by the employer during the quarantine period despite the employer knowing that the person had Covid-19 symptoms. The case is Brown v. Roanoke Rehabilitation and Healthcare Center, here, decided by the Middle District of Alabama on February 22, 2022. As usual the blog entry is divided into categories and they are: facts; court’s reasoning that Covid-19 may be an actual disability; court’s reasoning that plaintiff sufficiently alleged that she was regarded as having a disability; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.
Plaintiff was employed as a certified nursing assistant September 16, 2019 until July 13, 2020. On June 29, 2020, plaintiff went to her physician to be tested for Covid-19 because she was suffering from severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes. While she awaited her test results, her physician directed her to self isolate. Two days later, on July 1, 2020, Brown’s test results came back positive for Covid-19. She then provided her physician’s instructions and her positive Covid-19 test results to the defendants. At the time, plaintiff’s employer maintained a policy requiring a 14 day isolation period for any employee testing positive for Covid-19. So, plaintiff was to isolate until July 14, 2020. Despite that, plaintiff’s supervisor, called plaintiff on July 7, seven days into her 14 day isolation, and instructed her to report to work to be tested again for Covid-19. Plaintiff responded that she was still under isolation and that she continued to experience the same severe systems. On July 10, 2020, her employer contacted plaintiff again and repeated the instruction that she would report to work to take a Covid-19 test. Again, plaintiff told her employer that she was still suffering from Covid-19 symptoms. She then remained in isolation and did not report to work to take the Covid-19 test. The following day, plaintiff was contacted again for a third time. This time plaintiff was informed by her employer that if she did not return to work on July 13, 2020, the employer would consider her as having voluntarily quit. Plaintiff did not in fact return to work because she was still suffering from severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes. Her employer terminated her that day, which was the 13th day of her 14 day isolation. The following day after her termination, plaintiff’s doctor retested her for Covid-19 and she was still positive. Plaintiff then filed suit suit, presumably after exhausting the EEOC administrative processes.
Court’s Reasoning That Covid-19 May be an Actual Disability
- To have an actual disability under the ADA, an individual must have a physical or mental impairment substantially limiting one or more major life activities.
- Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
- Guidance jointly issued by the Department of Health and Human Services and the Department of Justice, which we previously discussed here, indicate that certain forms of Covid-19 may be considered a disability under the ADA. That guidance states that certain forms of Covid-19 can substantially limit major life activities of respiratory function, gastrointestinal function, and brain function, even months after being first infected.
- The EEOC has said in their guidance, which we have discussed here among other places, that persons with sufficiently severe impairment from Covid-19 may be covered even if those impairments are not long-term. While that guidance is neither determinative nor binding on a court, it is helpful in deciding the issue of whether Covid-19 can be a disability. That guidance informs that Covid-19 can be a disability so long as the condition is sufficiently severe to impair major life activities.
- Plaintiff’s symptoms included severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes. Such symptoms could substantially limit any of many major life activities, such as: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Plaintiff’s amended complaint makes clear that the symptoms impacted her ability to breathe, concentrate, and work, all of which are statutorily recognized major life activities.
- The defense arguments that the typical nonsevere, short-term conditions associated with Covid-19 are a short-term condition not protected by the ADA are better dealt with at the summary judgment stage than they are at the motion to dismiss stage. It is possible that the plaintiff gets by the motion to dismiss but loses at the summary judgment stage.
Court’s Reasoning That Plaintiff Alleged Sufficient Facts that She Was Regarded as Having a Disability
- The ADA does not allow for reasonable accommodations for regarded as claims. So, the failure to accommodate claim gets dismissed because it is hooked into the regarded as claim.
- Discriminatory discharge claims can be based on the employer’s perception that an employee has a disability.
- Under the 2008 amendment to the ADA, an individual is regarded as disabled when she is perceived as having a physical or mental impairment, regardless of whether the impairment actually exists or is perceived to limit a major life activity.
- An individual cannot be regarded as having such an impairment if the impairment is transitory and minor.
- A transitory impairment is an impairment with an actual or expected duration of six months or less.
- What matters for the regarded as theory is whether the employer perceived the plaintiff as having a physical or mental impairment and not whether the plaintiff was actually impaired.
- Many lower courts have found that the transitory and minor exception is a defense that the defendant bears the burden of establishing, rather than an element of the plaintiff’s pleading requirement. So, a plaintiff is not required to plead facts plausibly suggesting that the transitory and minor defense fails.
- Since transitory and minor is a defense, plaintiff’s claim can only be dismissed if it is apparent from the face of the complaint that her Covid-19 case was transitory and minor, and plaintiff’s allegations of severe symptoms certainly do not make it apparent that her Covid-19 case was either transitory or minor.
- Transitory and minor means exactly that. That is, the condition must be both transitory and minor.
- The severity of an impairment is an objective and factual inquiry. Plaintiff alleges she told the defendants that she was suffering from a severe and symptom laden case of a Covid-19 and those allegations are sufficient to allege that her impairments were not minor. In any event, whether her impairment was minor, is better addressed at the motion for summary judgment stage than at the motion to dismiss stage, especially since, as the court noted in a footnote, the physical impact of Covid-19 differ widely from person to person. After all, individuals diagnosed with Covid-19 may suffer from no symptoms at all or only minor symptoms on a short-term basis. On the other hand, individuals have been noted to suffer from extremely severe symptoms that have required months long hospitalization and even death. Then you have long-haul Covid-19, which can happen regardless of the symptoms a person has when they get Covid-19. The category that plaintiff falls into is a fact driven inquiry not appropriate in a motion to dismiss.
- Plaintiff’s allegations, which only require a short and plain statement of the claim, are more than sufficient in this case could get by a motion to dismiss.
- For a regarded as claim, all a plaintiff has to show is a physical or mental impairment.
- Interesting that the court did not pursue how a major life activity also includes bodily functions. They did mention it a bit implicitly but they didn’t address it head-on.
- The court cited favorably to both EEOC guidances as well as the joint Department of Health and Human Services and DOJ guidance that we have previously discussed, here, for example, and here.
- For the regarded as exception to apply, it has to be BOTH transitory and minor.
- Regarded as claims do not have reasonable accommodation requirements with them.
- The transitory and minor exception is a defense that the defendant has the burden of establishing rather than an element of plaintiff’s pleading requirements.
- Whether a condition is minor is an objective and factual inquiry not normally suitable on a motion to dismiss.
- While theoretically a short and plain statement of the claim are all that is required, I have found that when it comes to disability discrimination cases, you want to allege sufficient enough facts to put a reasonable person on notice as to exactly what is going on. Notice pleading may be theoretically still in play, but as a practical matter, a plaintiff alleging disability discrimination makes a mistake by going about it that way.
- It is a bad move for a defendant to terminate an employee during a quarantine period demanded by the CDC.