On September 16, 2021, the U.S. District Court for the Eastern District of Pennsylvania, in Matias v. Terrapin House, Inc., ruled that an employee, who was terminated the same day that she informed her employer that she had tested positive for COVID-19, could proceed with claims alleging that her termination violated the Americans with Disabilities Act Amendments Act (ADAAA) and the Pennsylvania Human Relations Act (PHRA).
Under the ADAAA and the PHRA (i.e., Pennsylvania’s anti-discrimination and, for disability discrimination, is analyzed identically to the ADAAA), employers are not permitted to take adverse employment actions against employees who have, or are regarded or perceived as having, qualifying disabilities. A “qualifying disability” is a physical or mental impairment that substantially limits one or more major life activities of a person.
In Matias, the central question presented to the court was whether the plaintiff could be considered to be “regarded as” having a disability, following her report to her employer that she tested positive for and had symptoms of COVID-19. In concluding that the plaintiff had plausibly alleged that she was regarded as having a disability, the court turned to guidelines developed jointly by the Department of Health and Human Services and Department of Justice. These guidelines made it clear that COVID-19 could carry long-term impairment of major life functions, including to respiratory functions, gastrointestinal functions, and brain functions.
The employer argued that the plaintiff’s alleged disability was “transitory and minor.” As a matter of law, impairments that are merely transitory and minor are not considered disabilities for purposes of the ADAAA and PHRA. The seasonal flu is a quintessentially transitory and minor impairment. The court concluded that, unlike the seasonal flu, COVID-19 is not transitory and minor. In doing so, the court took judicial notice of facts regarding the symptoms and statistics (i.e., number of confirmed COVID-19 cases, hospitalizations, and deaths) of COVID-19 listed on the CDC’s website. Then it compared them to that of the seasonal flu and the Swine Flu (H1N1) epidemic, finding that “the hospitalization and mortality profiles of the seasonal flu pale in comparison to those associated with COVID-19.” In other words, the court concluded, based on facts of which it took judicial notice, that COVID-19 is so much more severe than the flu and unlike the flu that it is not transitory and minor.
This opinion makes it clear that employers should take care to ensure they provide employees who test positive for COVID-19 with reasonable accommodations. However, its impact could be far more wide-reaching. Given that this opinion suggests that it is a legal certainty that COVID-19 is categorically more severe than the flu, jurisprudence on flu-related cases, such as vaccine mandates, may not provide employers much protection. This opinion may also implicate employers’ requirements under OSHA to ensure a safe workplace, including taking far more precautions regarding COVID-19 than they have ever been required to take for the flu.
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