Matt Purushotham
Thu, 09/30/2021
The United States District Court for the Eastern District of Pennsylvania declined to dismiss an employee’s allegations that her former employer terminated her employment on the same day that she disclosed a positive COVID-19 test. The Plaintiff alleged that, by terminating her employment, instead of providing leave under the Families First Coronavirus Response Act (“FFCRA”), her employer not only violated the FFCRA, but also discriminated against her in violation of the Americans with Disabilities Act Amendments Act (ADAAA), and the Pennsylvania Human Relations Act (PHRA) by regarding her as disabled. Courts have applied the same framework for “regarded as” claims under the PHRA.
Plaintiffs in “regarded as” disability discrimination cases must show that their employer misinterpreted information about their limitations, and concluded that they were unable to perform a wide range or class of jobs. Here, plaintiff alleges that she notified her employer that she was losing her sense of taste and smell and that she felt ill. The Court observed that the Department of Health and Human Services and Department of Justice have concluded that so-called “Long COVID” may be considered a disability under the ADAAA, and that one of the common symptoms of Long COVID is loss of taste or smell. Based on those disclosures, the Court concluded that the plaintiff “has plausibly alleged that [her employer] regarded her as having an impairment that can substantially limit major life functions.”
One factor that the court will weigh in analyzing such claims is when the employer terminates the employee soon after learning about the employee’s physical or mental impairment. In this case, the plaintiff was terminated on the same day that she disclosed her COVID-19 test results.
Employers may still avoid liability in a “regarded as” case if they can show that the condition is transitory and minor. Transitory means an impairment with an actual or expected duration of 6 months, but the Act does not define “minor.” The court rejected the employer’s argument that COVID-19 is “transitory” because FFCRA leave is only two weeks long. Although the Court concluded the employer may have established COVID-19 is “transitory,” it also concluded that COVID-19 is objectively not “minor” after comparing the hospitalization and death rates attributable to the seasonal flu, the Swine Flu and COVID-19. Further, despite the employer’s claims that it did not perceive the Plaintiff as having anything other than a minor and transitory condition, the court explained that the employer could not carry its burden based on its subjective belief.
The case is Matias v. Terrapin House Inc., No. 5:21-cv-02288.
If you are an employee who has had COVID-19 and whose employer has terminated your employment following disclosure of your condition, such a termination may be illegal. If you have questions about how “regarded as” disability discrimination may affect you, you can contact MSE at info@mselaborlaw.com.
