Federal Court Decides Covid-19 is Not a “Transitory and Minor” Disability Exempted from ADA protections

What happens if fired for testing positive for COVID

First, trust that you are not alone in worrying about this.  Employment lawyers have been wondering the same thing.  Since the expiration of the FFCRA last December, there has been nothing explicitly prohibiting termination of a Covid positive employee. What does ADA protections mean in this situation.

However, last month, a federal district court addressed the issue head on.  In our opinion, reached the correct conclusion.

In Matias v. Terrapin House Inc., an employee filed a lawsuit saying she was terminated. She felt it was  in violation of the Americans with Disabilities Act (ADA) because she tested positive for COVID-19.

As a backdrop, the ADA prohibits discrimination against people who are disabled and people who employers “regard as” disabled.  That ADA defines “disability” as a condition that substantially limits an employee in one or more “major life activities.”  Covid, thankfully, is not typically disabling for most people. That meant the ADA protections might not protect people who test positive and then fired.

In Matias, however, the court found the employee had plausibly alleged a “regarded as” disability claim under the ADA . She claimed that her employer fired her the day she informed them she had lost her sense of taste and smell. Then she notified them that she had tested positive for Covid. The court noted that the “common symptoms” of the longer forms of COVID-19 include “loss of taste or smell” and that the employee had reported these symptoms to her supervisor.  Taste and smell are major life activities.

In claiming that Covid-19 is not covered by the ADA, the company argued that COVID-19 is “transitory and minor” and because of that, excepted from ADA.  After noting the length of the pandemic, the number of cases and the total deaths in the US, the Court concluded that even if COVID-19 was “transitory” it was not “minor.”

What does this mean for employees

This case is probably the tip of the iceberg when it comes to Covid litigation we will see in the future.  But so far the horizon looks good for protecting employees.

Case + Sedey will continue to address and update significant challenges and changes. All due to the COVID -19 pandemic as it applies to legal and economic challenges facing employees.