Court Holds COVID-19 Is Not a “Transitory and Minor” Disability Exempted From ADA Protections

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In a case of first impression, the federal court in Matias v. Terrapin House, Inc., denied an employer’s motion to dismiss an employee’s suit that alleged she was terminated in violation of the Americans with Disabilities Act (ADA) and the Families First Coronavirus Response Act (FFCRA) after testing positive for COVID-19—providing a potential roadmap for future COVID “regarded as” ADA claims. 

What You Need to Know:

  • Employee had plausibly alleged a “regarded as” disability claim under the ADA where she claimed that her employer knew that she was suffering a loss of taste and smell due to COVID-19 and terminated her shortly thereafter.
  • Employer could not rely on the “transitory and minor” exception because COVID-19, even if transitory, was not “minor” where the hospitalizations and deaths were significantly higher in comparison to the average seasonal flu. 

The Court reached two key conclusions concerning COVID-19 that may impact future ADA disability claims:

  1. The plaintiff sufficiently alleged a claim for “regarded as” disability discrimination under the ADA where days prior to her termination she informed her employer that she was COVID-19 positive and was losing her sense of taste and smell; and
  2. The employer had failed to establish that COVID-19 was transitory and minor and therefore not a disability under the ADA.

To state a prima facie case of discrimination under the ADA, a plaintiff must allege that: (1) they are a disabled person within the meaning of the ADA; (2) they are otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) they have suffered an otherwise adverse employment decision as a result of discrimination. “Disability” is defined in the ADA as: (a) a physical or mental impairment that substantially limits one or more major life activities, (b) a record of such an impairment, or (c) being regarded as having such an impairment.  42 U.S.C. § 12102(1).

The Court in Matias determined that the plaintiff had plausibly alleged that her employer “regarded her” as having an impairment. In so holding, the Court focused on the allegations that in the days immediately prior to her termination Matias had informed her employer that she was losing her sense of taste and smell, and that she had also tested positive for COVID-19. It pointed to the recent guidance from the Department of Justice and Department of Health and Human Services that “long COVID” (new or ongoing symptoms that last weeks or months after infection) may be considered a disability. Although Matias did not allege she suffered from long COVID or that her employer regarded her as having long COVID, the Court still held she had plausibly alleged a “regarded as” disability claim. The fact that she had informed her employer that she was losing her sense of taste and smell—which is one symptom of long COVID—and the temporal proximity between Matias’s disclosure of her symptoms and positive test result was enough for the Court to conclude she had plausibly alleged that Terrapin House regarded her as disabled. Based on this, it denied Terrapin House’s motion to dismiss.

The Court then rejected Terrapin House’s affirmative defense that COVID-19 is “transitory and minor” and, thus, excepted from the ADA. Citing the length of the COVID-19 pandemic, the number of cases, and the total deaths in the United States, the Court concluded that, even if COVID-19 was “transitory,” it was not “minor.” It contrasted another respiratory disease, H1N1, which some federal district courts had determined was “minor” where the number of cases of H1N1 was on par with seasonal flu, and the number of deaths was less than the seasonal flu. Because “the hospitalization and mortality profiles of the seasonal flu pale in comparison to those associated with COVID-19,” COVID-19 “is not ‘minor’” under the ADA.  

This is the first time a federal district court has addressed the issue of whether COVID-19 is “transitory and minor” head on and it remains to be seen whether other courts will follow suit. See Burbach v. Arconic Corp., No. 2:20-CV-00723, 2021 WL 4306244, at *6 (W.D. Pa. Sept. 22, 2021) (rejecting defendant’s motion to dismiss “regarded as” disability claim because coronavirus was “transitory and minor” because at the motion to dismiss stage, based on the pleadings in the complaint, it was “reasonable to infer that Plaintiff's impairment in treating and recovering from COVID-19 could have lasted longer than six months”); Payne v. Woods Servs., Inc., 520 F. Supp. 3d 670, 679 (E.D. Pa. 2021) (holding that plaintiff had not sufficiently alleged facts in his complaint that he was “regarded as” disabled due to his COVID-19 diagnosis, and not reaching the questions of whether COVID-19 was “transitory and minor”).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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