Lack of Immunity to Covid-19 May be a Disability under the ADA

With covid-19 not giving up, employment lawyers across the country, including our Long Island employment lawyers at Famighetti & Weinick PLLC, are facing questions about how the new pandemic will affect essential workers and non-essential workers who go back to work as the country adjusts to “the new normal” and the economy reopens.

In one of our previous posts, we opined that workers with generalized fear or anxiety about workplace covid-19 exposures likely were not protected under the Americans with Disabilities Act (“ADA”). That blog assumed that only vulnerable workers, or workers with underlying medical conditions worried about contracting coronavirus, were protected under the ADA.

A recent federal court decision, however, suggests that even workers with generalized fear or anxiety about workplace covid-19 exposures may be protected under the ADA. Even though the decision was issued by a Texas district court concerning voters, the analysis may be used to extend the disability discrimination laws’ coverage for workers who lack immunity to covid-19.

As stated in the previous post, to qualify for protections under the ADA, an employee must have an underlying medical condition to legally constitute a “disability” under discrimination laws. The ADA requires that the employer provide reasonable accommodations for such employees’ medical conditions.

United States District Judge Fred Biery, last week, held that during the pendency of pandemic circumstances, lack of immunity from covid-19 and the subsequent fear of contracting the virus is a physical condition that constitutes a “disability” under the Texas Election Code. The Code defines “disability” as a “physical condition that prevents the voter from appearing at the polling place on election day without a likelihood … of injuring the voter’s health.” “Disability” is also defined as “a physical or mental condition that limits a person’s movement, senses, or activities.” In the Texas case, the judge held that the fear and anxiety currently gripping our country has clearly limited citizens’ physical movements, affected their mental senses, and constricted activities, socially and economically.

In comparison, the ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activity. Just as the fear of contracting the virus in people lacking the immunity from covid-19 has clearly limited citizen’s physical movements in attending the polling places, the same fear has clearly limited the citizen’s physical movements in attending their work places.

It remains unclear whether other states, including New York, will follow the Texas ruling on the issue or whether the ruling will be extended to workplace protection laws. A reasonable interpretation of the Texas ruling, however, is that workers with generalized fear or anxiety about workplace covid-19 exposures likely will be able to request reasonable accommodations from their employers should the workers allege a disability because of lack of immunity from contracting covid-19. In such a case, it would be likely reasonable for the employer to be required to provide masks, gowns, and face shields to workers with fear of contracting the virus.

However, as stated in the previous post, the duty to request an accommodation will still be on the employee. In other words, the employee will have to make clear to the employer that he or she needs a change of working conditions to accommodate the medical condition, but the employer will not be required to guess, assume, or make their own independent assessments about whether the employee needs a reasonable accommodation.

In addition, the employer will only need to provide accommodations which are reasonable and which do not pose an undue hardship on the employer. Reasonable accommodations may include erecting barriers, reassigning portions of an employee’s work duties, modifying work schedules, and/or moving work locations. Furthermore, the employer will not be required to completely eliminate the threat of spread of covid-19 for the “disabled” worker, but will likely need to only reduce the threat to “an acceptable level” and mitigate the risk of exposure instead.

In sum, the Texas ruling opens the door to an argument that lack of immunity to coronavirus may constitute a disability under employment discrimination statutes. If such an extension of the law is adopted by the courts, workers who lack immunity to covid-19 may have grounds to request reasonable accommodations to protect their safety. Moreover, workers with lack of immunity who push back on an employer’s demand that the worker return to work, and who are subsequently terminated, may have grounds for a wrongful termination.

We stress that the theory that lack of immunity to covid-19 constitutes a disability under workplace discrimination laws is as novel as the conoranvirus and has not been tested in court. Workers concerned about returning to work should speak with experienced employment attorneys before making decisions about whether return to work, whether and how to request accommodations, and being terminated for refusing to return to work may be a wrongful termination.

Our Long Island employment lawyers remain available to discuss these and other covid-19 related employment questions at 631-352-0050.

Today’s Long Island employment law blog was written by law student intern Ashkhen Oganesyan.

Lack of immunity is a disability?