Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.
Sign up for our Employment newsletter
You must correct or enter the following before you can sign up:
Thank You!
Law360 (June 10, 2020, 4:36 PM EDT )
 |
| Gary Phelan |
After observing that the question had been raised by a lot of people, EEOC senior attorney adviser Sharon Rennert stated in the EEOC's March 27 COVID-19 webinar that "it is unclear at this time whether COVID-19 is or could be a disability under the ADA.[2] Rennert explained that "this is a very new virus and, while medical experts are learning more about it, there is still much that is unknown."[3]
In the two months since the EEOC articulated its position, medical experts have learned much more about the effects of COVID-19. The consensus that has emerged from the medical community is that COVID-19 is taking a severe toll on its victims physically and mentally and that these effects are lasting much longer than expected.
In one recent article, The Washington Post observed that "clinicians around the world are seeing evidence that suggests the virus also may be causing heart inflammation, acute kidney disease, neurological malfunction, blood clots, intestinal damage and liver problems."[4]
In another recent article, The Washington Post examined the damage that COVID-19 was inflicting on the kidneys, heart and brain.[5] And in the wake of its physical damage, medical experts are also seeing that it is inflicting severe psychological trauma.[6]
The ADA defines "disability" as (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such an impairment, and (3) being regarded as having such an impairment.[7]
The effects of COVID-19 will likely meet at least one of several of the types of physical impairments under the ADA, which the EEOC regulations provide includes "any physiological disorder … affecting one or more body systems, such as special sense organs, respiratory … cardio vascular, digestive … immune, circulatory, hemic and lymphatic … and endocrine."[8] COVID-19's impact will likely also effect one or several major life activities, such as the operation of a major bodily functions, like immune cell growth, neurological, bowel, respiratory and endocrine function.[9]
To be substantially limited in one or more major life activities, the U.S. Supreme Court stated in Toyota Motor Manufacturing, Kentucky Inc. v. Williams[10] in 2002 that "an individual must have an impairment that prevents or substantially restricts the individual from doing activities that are of central importance to most people's daily lives."[11] The ADA's definition of "disability," generally, and the term "substantially limits," specifically, was transformed in September 2008 when Congress enacted the ADA Amendments Act, or ADAAA.[12]
The ADAAA was adopted for the purpose of "reinstating a broad scope of protection to be available under the ADA."[13] In its regulations promulgated to enforce the ADAAA, the EEOC stated that the "term 'substantially limits' shall be construed in favor or expansive coverage" and that the term is "not meant to be a demanding standard."[14] The EEOC regulations elaborate that the determination will not require scientific, medical or statistical analysis.[15]
The EEOC's reluctance to take a position as to whether COVID-19 meets the definition of disability is consistent with the ADA's regulation that "there is no 'per se' disability."[16] The ADA's legislative history also states that the statute eschewed a laundry list of disabilities "because of the difficulty of insuring the comprehensiveness of such a list, particularly in light of the fact that new disorders may develop in the future."[17]
In its interpretive guidance, the EEOC also observed that the question of whether an individual has a disability depends on the impairment's impact on the person's life, rather than its name or diagnosis.[18]
Although the determination of whether an impairment substantially limits a major life activity will still require an individualized assessment, the ADAAA streamlined the analysis by providing a list of several impairments that will virtually always substantially limit a major life activity, including cancer, which substantially limits normal cell growth; HIV, which substantially limits immune function; and diabetes, which substantially limits endocrine function.[19]
The EEOC similarly should take the position that COVID-19 will virtually always substantially limit the major life activities of the functions of the immune system and normal cell growth.[20]
When determining whether an impairment substantially limits a major life activity, the adverse side effects of medication or other medical treatment should also be taken into consideration.[21] For example, the drug considered to be the best hope for treating COVID-19, remdesivir, might also cause liver damage in some patients.[22]
People using the drug hydroxychloroquine, which is being widely used to treat COVID-19 despite medical studies indicating it is ineffective, are more likely to develop an irregular heart rhythms.[23] The ADAAA also provides that impairments should be considered in their unmitigated state.[24] Therefore, the determination as to whether a person with COVID-19 has a disability will need to be considered without the use of any kind of treatment.
When determining whether an individual is substantially limited, the condition, manner and duration of the impairment and its effect on the individual's performance of the major life activity should be considered.[25]
The EEOC's ADAAA regulations provide that the "effects of an impairment lasting or expected to last fewer than six months can be substantially limiting" when determining whether the individual has a disability.[26] Therefore, even though COVID-19's physical and mental impairment may last less than six months, it may still be considered a disability if those effects are sufficiently severe.[27]
Medical experts are discovering that the recovery process from COVID-19 can be both prolonged and debilitating. In one recent article, The New York Times noted that the debilitating symptoms of the virus can linger long after the disease has been expelled.[28] According to the results of a survey of 640 COVID-19 support group members, just 20% of respondents were symptom-free 50 days after they got the virus.[29]
If the EEOC adds COVID-19 to the list of impairments that will, in virtually all cases, be a substantial limitation of a major life activity, a court will generally rely on that language to conclude that the individual with COVID-19 has a disability.[30] If challenged by an employer, the plaintiff will still carry the burden of showing that COVID-19 did, in fact, substantially limit a major life activity.[31]
Nevertheless, because terminating a qualified individual with a disability violates the ADA, employers will be less likely to terminate employees because they have COVID-19. The ADA also requires employers to provide reasonable accommodation to an otherwise qualified individual unless the employer can show that the accommodation would cause an undue hardship.[32] As a result, the EEOC's endorsement of COVID-19 as a disability in virtually all cases would shift away from the threshold question of coverage to the reasonable accommodation requirement — the linchpin of the ADA.[33]
The ADA also prohibits employers from discriminating against "a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association."[34] While the provision primarily focuses on employees' association with family members with disabilities, the EEOC regulations provide that it extends to business, social or other relationships.[35]
If the EEOC takes the position that COVID-19 is a substantial limitation of a major life activity in virtually all cases, it will deter employers from discriminating against employees because they fear the employee will catch the virus from someone with whom they have an association or relationship.
If an employer believes — rightly or wrongly — that an employee has COVID-19 and takes adverse action against the employee for that reason, the employee may also be protected under the "regarded as" prong of the definition of disability.
The ADAAA provides that an individual falls within the regarded-as category if she has "an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."[36] Consequently, the focus will be on whether the individual was subjected to adverse employment action due to the perceived impairment, regardless of the actual or perceived impairment's severity.
Employers are not required to provide an accommodation under the regarded-as prong.[37] Nevertheless, after the ADAAA was adopted in 2008, the regarded-as prong of the definition of disability has become the principal avenue for bringing ADA claims.[38] It offers protection to both individuals who either have or have recovered from COVID-19 as well as individuals the employer believes may have COVID-19.
In the case that laid the foundation for the regarded-as prong, the U.S. Supreme Court in 1987 observed in School Board of Nassau County, Florida v. Arline,[39] that
The EEOC stated on the appendix to its ADAAA regulations that coverage under the regarded-as prong "should not be difficult to establish."[41] However, the regarded-as prong does not apply to impairments that are both transitory and minor.[42][f]ew aspects of a [disability] give rise to the same level of public fear and misapprehension as contagiousness. Even those who suffer or who have recovered from such noninfectious diseases as epilepsy or cancer have faced discrimination based on the irrational fear that they might be contagious.[40]
An impairment is transitory if it has "an actual or expected duration of six months or less."[43] The term "minor" is not defined in either the statute or regulations. An objective standard is utilized to determine if the perceived disability is transitory and minor.[44] Therefore, the employer's subjective relief is irrelevant.[45]
Although the effects of COVID-19 will likely be less than six months in many cases, it will probably not be considered minor in most cases. Nevertheless, many employers will likely contend that, like the flu, the effects of COVID-19 are both transitory and minor.[46] If the EEOC endorses the position that COVID-19 is a disability in virtually all cases, it will deter employers from discriminating against individuals with COVID-19, who had COVID-19, or who they believe may have it.
As James Hamblin wrote in The Atlantic, "COVID-19 is in many ways proving to be a disease of uncertainty."[47] Nevertheless, navigating the challenges posed by COVID-19 does not have to share that uncertainty in workplaces around the country.
The EEOC has issued very useful guidance on COVID-19, the ADA, the Rehabilitation Act and equal employment opportunity laws.[48] However, the EEOC's position that it is unclear at this time whether COVID-19 is a disability will only add to the uncertainty.
The Washington Post noted that "[e]xperts say it will be years until it is understood how the disease damages organs and how medications, genetics, diets, lifestyles and distancing impact its course."[49] Employers and employees dealing with COVID-19 right now do not have the luxury of waiting for years until the medical experts provide enough clarity for the EEOC to determine whether it is a disability under the ADA.
Gary Phelan is a shareholder at Mitchell & Sheahan PC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] 42 U.S.C. § 12101 et. seq.
[2] https://www.eeoc.gov; Transcript of March 27, 2020 Outreach Seminar.
[3] Id.
[4] Lenny Bernstein, Carolyn Y. Johnson, Sarah Kaplan and Laurie McGinley, "Coronavirus Destroys Lungs But Doctors Are Finding Its Damage in Kidneys, Health and Elsewhere," Washington Post (April 15, 2020). The first sign of COVID-19's uncertainty was when the Center for Disease Control expanded COVID-19's symptoms from fever, cough and shortness of breath to include chills, repeated shaking with chills, muscle pain, head ache, sore throat and loss of taste and smell. https://www.cdc.gov.
[5] Lenny Bernstein and Ariana Eunjung Cha, "Doctors Keep Discovering New Ways the Coronavirus Attacks the Body, Washington Post (May 10, 2020). A study of COVID-19 patients in China found that many recovered patients continued to have impaired liver function and potentially long-lasting heart damage. Matt Steib, "There's More Bad News On The Long-Term Effects of the Coronavirus," https://nymag.com/intelligensies/2020/04-more-bad-news-on=the=long-term-effects-of-the-coronavirus.html. In another study 1 in 5 COVID-19 patients were found to have cardiac damage. Markian Hawryluk, "Heart Damage in COVID-19 Patients Puzzle Doctors." https://www.scientificamerican.com/article/heart-damage-in-COVID-19-patients-puzzle-doctors.
[6] Lois Parshley, "The Emerging Long-Term Complications of COVID-19 Explained," Vox (May 8, 2020).
[7] 42 U.S.C. § 12101(2).
[8] 29 C.F.R. § 1630.2(J)(3).
[9] 42 U.S.C. 12101(2)(B).
[10] Toyota Motor Mfg., Kentucky, Inc. v. Williams
, 534 U.S. 184 (2002), overturned due to legislative action, in U.S. Publ. L 110-325 (Jan. 1, 2009).[11] Id. at 200.
[12] ADA Amendments Act of 2008, Publ. L. No. 101-325, 122 Stat. 3553 ("ADAAA" or "Amended Act").
[13] Id. § 2(b)(1).
[14] 29 C.F.R. § 1630.2(j)(1)(i).
[15] 29 C.F.R. § 1630.2(j)(1)(v).
[16] 29 C.F.R. § 1630.2(j)(3).
[17] 29 C.F.R. § 1630.2(j)(4)(ii).
[18] 29 C.F.R. § 1630 App. ("Introduction"); see Gary Phelan and Janet Bond Arterton, Disability Discrimination in the Workplace, § 4-3 (West Group 1992-2019).
[19] C.F.R. § 1630.2(j)(3)(iii).
[20] 42 U.S.C. § 12102(2)(B).
[21] 29 C.F.R. § 1630.2(j)(4)(ii); Sulima v. Tobyhanna Army Depot
, 602 F. 3d 177 (3rd Cir. 2010) .[22] Megan Schmidt, "What Is Remdesivir, the First Drug That Treats Coronavirus," www.discovermagazine.com (May 6, 2020).
[23] Ariana Eunjung Cha and Laurie McGinley, "Antimalarial Drug Touted By President Trump Is Linked To Increased Risk of Death In Coronavirus Patients, Study Says," Washington Post (May 22, 2020).
[24] 29 C.F.R. 1630.2(j)(1)(vi).
[25] 29 C.F.R. § 1630.2(j)(4).
[26] 29 C.F.R. 1630.2(j)(1)(ix).
[27] 29 C.F.R. § 1630.2(j)(4)(ii).
[28] Jason Horowitz, "Surviving COVID-19 May Not Feel Like Recovery For Some," New York Times, May 10, 2020.
[29] Brian Vastag and Beth Mazur, "Researchers Warn COVID-19 Could Cause Debilitating Long-Term Illness in Some Patients," Washington Post (May 30, 2020); In her New York Times op-ed entitled, "We Need to Talk About What Coronavirus Recoveries Look Like," Fiona Lowenstein wrote about the volatile progression of her recovery from COVID-19. The uncertainty led her to start a worldwide COVID-19 support group called Body Politic, which now includes over 9,000 members worldwide. The common thread of its members was, and continues to be, prolonged recovery lasting several weeks and, in some cases, months with symptoms that fluctuated in intensity and frequency. See Fiona Lowenstein, "My Coronavirus Support Group Is My Most Important Medical Support Right Now," https://www.vox.com/2020/51/2/264946/coronavirus-survivors-stories-symptoms/tips.
[30] See, e.g., Angell v. Fairmount Fire Protection District
, 907 F. Supp. 2d 1242, 1250 (D. Colo. 2012), aff'd, 550 Fed. Appx. 596 (10th Cir. 2013); Katz v Adeco USA, Inc. 845 F. Supp. 2d 539, 548 (S.D.N.Y. 2012).[31] See, e.g., Alston v. Park Pleasant, Inc.
, 679 Fed. Appx 169, 172 (3d Cir. 2017) (upholding decision holding that a plaintiff with breast cancer did not have a disability, reasoning that the plaintiff never claimed that her cancer substantially limited her in a major life activity. The court stated that "[a]lthough the ADAAA makes the individualized assessment 'particularly simple and straight-forward' for diseases like cancer, 29 C.F.R. § 1630.2(j)(3)(ii), an individual assessment must still take place.").[32] 42 U.S.C. § 12112(b)(5).
[33] In its Technical Assistance Question and Answer Guidance related to COVID-19, the EEOC pointed out that there may be reasonable accommodations for individuals with disabilities who, due to a preexisting disability, are at higher risk from COVID-19. The range of possible accommodations include teleworking, leaves of absence, temporary restricting in job duties, modified work schedules or changes to the work environment to reduce contact with others. See "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO laws. D. Reasonable Accommodation, https://www.eeoc.gov/wysk/what-you-should-know-about-COVID-19-and-ada-rehabilitation-act-and-other-eeo-laws (May 7, 2020).
[34] 42 U.S.C. § 12112(b)(4).
[35] 29 C.F.R. § 1630.8.
[36] 29 C.F.R. § 1630.2(1)(1).
[37] 42 U.S.C. § 12201(h); 29 C.F.R. § 1630.2(o)(4).
[38] Alexander v. Washington Metropolitan Area Transit Authority
, 826 F. 3d 544, 547 (D.C. Cir. 2016).[39] School Board of Nassau County v. Arline
, 480 U.S. 273 (1987) (the court interpreted Section 504 of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 704).[40] Id. at 284.
[41] EEOC Guidance, 29 C.F.R., Part 1630 Appx, § 1630.2(1).
[42] 42 U.S.C. § 12102(3)(b).
[43] Id.
[44] 29 C.F.R. § 1630.15(f).
[45] Id.
[46] Lewis v. Florida Default Law Group
, Case No. 8:10-cv-1182-T-27EAJ,d (M.D. Fla. Sept. 15, 2011) (rejecting "regarded as" disabled argument reasoning that seasonal flu and H1N1 were transitory and minor).[47] James Hamblin, "Why Some People Get Sicker Than Others," www.theatlantic.com/health/archive/2020/04/coronavirus-immune-response/610228.
[48] U.S. Equal Employment Opportunity Commission, "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and the EEO laws, www.eeoc.gov.
[49] Lenny Bernstein and Ariana Eunjung Cha, "Doctors Keep Discovering New Ways the Coronavirus Attacks the Body, Washington Post, May 10, 2020.
For a reprint of this article, please contact reprints@law360.com.
