The New Jersey Superior Court, Appellate Division has issued a published decision holding that, under the facts of the particular case, COVID-19 alone is not a disability under the New Jersey Law Against Discrimination (NJLAD). While many may have assumed that COVID-19 automatically qualifies as a disability under the NJLAD, this June 7, 2023 decision tells us that is not necessarily the case and throws a wrench into many pending COVID-19-related disability claims.

This decision is significant, raising the question of whether, under certain circumstances, COVID-19 could ever qualify as a disability under the NJLAD. While the Appellate Division did not find COVID-19 to be covered as a disability under the NJLAD given the facts in this case, employers should remember that an employee may still be entitled to protections under other laws, such as the New Jersey Earned Sick Leave Law.

The plaintiff in Guzman v. M. Teixeira Int’l Inc., et al., the case in question, filed a complaint against his former employer and its Chief Executive Officer alleging that he was discriminated against based on his employer’s perception that he was “suffering from COVID-19.” The complaint was dismissed with prejudice by the trial court, which found that the plaintiff failed to state a claim under NJLAD for discrimination based on a perceived disability. The Appellate Division affirmed.

The Facts of the Case

The plaintiff worked for the defendants — a machine operator company and its Chief Executive Officer — and on July 23, 2020, reported to work and notified the CEO that he felt “cold, clammy and weak.” The plaintiff finished the workday but was then told that he could not return to work until he took a COVID-19 test. The worker obtained a COVID-19 test the next day and advised his employer that he was feeling better, offering to return to work. Before receiving his test results, he was terminated on July 29, 2020. The now-former employee filed a complaint against the company and CEO, claiming they had perceived the plaintiff as suffering from COVID-19 and were liable for perception of disability discrimination in violation of the NJLAD.

As discussed by the Appellate Division, the NJLAD defines “disability,” in relevant part, as a “physical or sensory disability, infirmity, malformation or disfigurement…or illness including…any mental, psychological…or neurological conditions which prevents the typical exercise of any bodily or mental functions or is demonstrable, medically or psychologically….” N.J.S.A. 10:5-5(q). To file a successful physical disability claim under the NJLAD a plaintiff must show that they (1) suffer “from a physical disability, infirmity, malformation or disfigurement; (2) which is caused by a bodily injury, birth defect or illness….” Viscik v. Fowler Equip. Co., 173 N.J. 1, 15 (2002).

The defendants moved to dismiss, arguing that the plaintiff failed to plead a discrimination claim based on a perceived disability because feeling “cold, clammy and weak” does not rise to a perceived disability. The trial court agreed, holding that “COVID-19 is a disease but it is not a disability within the definition of the [NJ]LAD.” The plaintiff then filed an amended complaint, which the trial court again dismissed, with prejudice. In doing so, it held that “every disease, however serious it can be for some people…does not become a disability as defined” in the NJLAD.

The plaintiff appealed, arguing that the trial court erred in failing to recognize COVID-19 as a disability under the NJLAD and in finding that the plaintiff failed to set forth facts supporting his claim that he was terminated based upon his perceived disability of suffering from COVID-19.

The Appellate Division affirmed, finding that even if the defendants believed the plaintiff had COVID-19 when terminating his employment, the plaintiff had not stated sufficient facts to demonstrate that his termination was due to a perceived disability as that term is defined by the NJLAD. Indeed, despite feeling “cold, clammy, and weak,” the plaintiff was able to report to work and stay until the end of the workday. He also went to a free clinic to obtain a COVID-19 test instead of going to a hospital or seeking medical attention/treatment and advised the defendants that he was feeling better the next day, offering to return to work. On these facts, the Appellate Division agreed with the trial court that the plaintiff did not qualify as an individual with a disability or a perceived disability, as defined by the NJLAD.

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