Is An Employee With Coronavirus “Disabled”?

The recent coronavirus outbreak raises a host of employment-law issues. For example, the Occupational Safety and Health Act requires employers to take measures to eliminate or reduce dangerous hazards to their employees. The Family and Medical Leave Act mandates leave for “serious health conditions,” raising questions as to whether an infected employee is legally entitled to leave. And Title VII of the Civil Rights Act prohibits discrimination based on national origin, so an employer can’t tell someone not to come to work just because he or she is from China or Italy.

Another legal issue for employers is whether an employee infected with the coronavirus qualifies as “disabled” under the Americans with Disabilities Act (ADA). The ADA protects a disabled employee against discrimination based on disability. Thus, an employer can’t discriminate in recruiting, hiring, assignments, leave, or other employment-related activity. Nor can it require medical examinations or ask questions about disabilities unless related to the job and necessary for the conduct of the business.

So how does this all factor in to the current situation facing employers in light of coronavirus?

The Equal Employment Opportunity Commission has published some helpful guidance for employers to follow during these unusual times. In general, the EEOC does not treat an employee’s infection with coronavirus as a protected disability. Rather, the EEOC’s guidance on pandemic preparedness—first developed during the H1N1 outbreak in 2009—says that employers are allowed to require employees to stay home if they are infected with coronavirus; “[a]dvising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1virus.” 

Moreover, during a pandemic, an employer can ask sick employees if they are experiencing flu-like symptoms, or even take employees’ temperatures, because these “inquiries are not disability-related.”

If an infection becomes severe enough to be treated as a disability—defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities—an employer can still inquire about an employee’s symptoms and tell him to stay home if the illness would pose a direct threat to other employees.

The case of Lewis v. Florida Default Law Group, originating from the H1N1 outbreak, shows how these issues can play out in litigation. Priscilla Lewis worked as a foreclosure specialist and was terminated after repeated absences due to illness. She sued her employer, alleging that it fired her because she “had or was perceived as having been infected with the H1N1 virus.” The court ruled that she was not disabled because her illness was undisputedly “short-term in duration” and did not “substantially limit” her life activities because she only suffered symptoms for a couple of weeks. Further, although the employer “took the threat of an H1N1 pandemic seriously,” it did not view Lewis’s impairment “as anything more than transitory and minor” and even had doubts that Lewis was suffering from H1N1. “Tellingly, none of the employees” who the employer actually believed to have H1N1 were terminated.

Of course, neither the Lewis decision nor the EEOC guidance gives employers the license to ignore the ADA when dealing with infected employees. An employer should be sensitive to whether an employee’s infection with coronavirus is in fact a passing ailment or has ongoing health effects that are longer-term and could constitute a disability under governing law. If so, then the employer may be required to consider whether the employee can continue performing his job with reasonable accommodations. Employers should also remember that even if an employee is not in fact disabled, if the employer perceives the employee as disabled and takes adverse action based on that perception, the employer can be liable.
[The link to the EEOC's guidance on pandemic preparedness has been updated.]

• Workplace Conditions (Occupational Safety and Health)
• COVID-19