Resolved medical conditions and COVID-19 symptoms — aside from “Long COVID” — may not be considered “disabilities” under the ADA.
A seven-week period between employee engagement in protected activity and an adverse employment action may not be considered sufficient temporal proximity that is unusually suggestive of discrimination or retaliation.
An employee’s use of FMLA leave and administrative leave do not constitute an exercise of their rights under the ADA.
On November 8, 2023, the United States District Court for the Eastern District of Pennsylvania granted the defendant’s motion for summary judgment and dismissed the plaintiff’s complaint in Erin Coleman v. Children’s Hospital of Philadelphia.
There, the plaintiff, Erin Coleman, alleged her former employer, the Children’s Hospital of Philadelphia (CHOP) discriminated and/or retaliated against her in connection with her medical leave for gallbladder surgery and COVID-19. Specifically, Coleman took six weeks of FMLA leave in connection with gallbladder surgery, returned to work for a short period of time, and then took administrative leave for COVID-19-related symptoms, including “COVID fog” and a lingering cough, for another one or two months, returning January 2021. She was suspended pending investigation on February 25, 2021, for allegedly falsifying her timecard and lying about it, and terminated five days later. She sued, specifically asserting disability discrimination and retaliation under the Americans with Disabilities Act (ADA), and retaliation under the Family and Medical Leave Act (FMLA).
The court first addressed Coleman’s claim that CHOP violated the ADA by terminating her because of her real or perceived disabilities. The court emphasized that Coleman’s ADA discrimination claim required her to be suffering from the claimed disability at the time her adverse employment action occurred. A disability is a described in the ADA as follows: (1) a physical or mental impairment that substantially limits one or more major life activities of such individual, (2) record of such an impairment, or (3) being regarded as having such impairment.
Coleman claimed that she was suffering from an “ongoing, episodic and serious GI condition that substantially limited her ability to perform a major life activity” at the time of her firing. The court concluded that because Coleman’s gallbladder and COVID-19 issues had resolved by the time she was terminated, and her COVID-19 symptoms were transient and minor, she did not have a physical or mental impairment or record of same. The court further found there was insufficient evidence that Coleman was regarded as having an impairment. Specifically, with respect to her gallbladder issues, the court reasoned that the only comments Coleman asserted to support this claim addressed Coleman’s condition while recovering, and offered no indication that CHOP viewed her as disabled at the time of her termination. With respect to her COVID-19 issues, the court held that no jury could find Coleman to be regarded as being disabled because CHOP reasonably understood that Coleman’s COVID-19 issues had fully resolved.
The court further explained that even if Coleman could have established she was disabled under the ADA at the time of her firing, she could not plausibly show that CHOP terminated her because of her alleged disabilities. Among other reasons, the court reasoned that the seven-week period between Coleman’s second return to work on January 4, 2021, and her suspension on February 25, 2021, did not constitute temporal proximity unusually suggestive of discrimination.
The court then addressed Coleman’s retaliation claims. Importantly, with respect to her ADA retaliation claim, the court concluded that use of FMLA and/or administrative leave (such as paid time off) did not constitute an invocation of her rights under the ADA and, therefore, she could not be retaliated against under the ADA for doing so. While the court concluded Coleman did engage in protected activity under the FMLA by taking FMLA leave, it concluded that the three-month gap between her FMLA leave and termination was not “unduly suggestive” of retaliation.
This decision provides some important guidance for how employers should handle employees claiming to be disabled. This opinion confirms that, absent documented long-COVID symptoms, the courts are hesitant to conclude that contracting COVID-19, by itself, constitutes an ADA-qualifying disability. Moreover, the opinion reiterates that employees who were formerly disabled may not be able to rely on those former disabilities to invoke the ADA’s protections. However, employers would be wise to exhibit caution in this respect. While the court here concluded that Coleman could not be “regarded as” having a disability, in large part due to a lack of any evidence to support that conclusion, employers should be careful to ensure adverse employment actions against formerly disabled employees could not be considered, at least in part, because they are still regarded as disabled. Even then, this opinion suggests that, absent other evidence of discrimination or retaliation, a period as short as seven weeks is likely insufficient temporal proximity for liability under the ADA or FMLA. Finally, this opinion confirms that, while requesting a reasonable accommodation is undoubtedly protected activity under the ADA (and employers should ensure they engage in an interactive process with employees that much such a request), taking FMLA or administrative leave are not typically considered protective activities under the ADA (unless, potentially, if the leave is granted as a reasonable accommodation under the ADA).
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