Mild COVID-19 Is Not a Disability Under Calif. Law

​An employee with mild COVID-19 who was fired after she came to work while she was feeling ill, in violation of company rules, could not go forward with her lawsuit under California's Fair Employment and Housing Act (FEHA), a federal court in California ruled. The employee did not have a disability and was not regarded as having a disability, and so was not protected under FEHA, according to the court.

The employee began working for the employer in 2018. By 2020, she had been promoted to the position of management associate. During 2020, she and other employees rotated responsibility for conducting COVID-19-targeted screenings for employees entering the workplace. To perform these screenings, the employees received training on COVID-19-safe policies and how to screen employees for COVID-19-related symptoms.

The employee understood that it was her responsibility to know and adhere to the protocols, one of which was that employees showing recognized indications of COVID-19 not be admitted to company facilities. Recognized indications of COVID-19 included feeling unwell and experiencing a cough or shortness of breath.

An employee who was sent home because of answering "yes" to any of the screening questions could return to work after seven days of the symptoms first appearing if the employee was free of fever and free of any cough or shortness of breath. Alternatively, an employee could return to work upon proof of a negative COVID-19 test result.

On Sept. 1, 2020, the employee woke up feeling fine, but tired. She reported to work. That afternoon she began experiencing mild body aches and felt extremely tired by the time she left. After work, her body aches and tiredness increased, and she experienced a severe headache. She scheduled a COVID-19 test for the next day.

On Sept. 2, the employee still felt fatigue and soreness. She went to work, where a colleague performed the COVID-19 screening test and took her temperature. Her temperature was normal. She worked her usual hours that day. Later that night, she texted her supervisor that she had been feeling bad for two days, specifically noting she had cold symptoms with a cough. She also notified him that she took a COVID-19 test earlier that day because she was feeling sick.

The employee took Sept. 3 off from work because she was not feeling well. However, she did not believe that her symptoms were bad enough to be caused by COVID-19.

When the employee woke on Sept. 4, she felt better but still had a headache. She went to work. About 10 a.m. that day, she received a positive result from the COVID-19 test. She then went home.

Although the employee tested negative on Sept. 18, she was not allowed to return to work because her supervisor concluded that she had violated the company's COVID-19 protocols and policies. The employee was later terminated, and she subsequently brought a lawsuit claiming disability discrimination.

Disability Under FEHA

The court first noted that FEHA defines a physical disability as a physiological condition that affects one or more body systems. The disability must also limit a major life activity. A condition limits a major life activity if it makes the achievement of the major life activity difficult. On the other hand, a disability is not a condition that is mild or does not limit a major life activity.

A condition need not be permanent to qualify as a disability, the court noted. Even short-term conditions, if they limit a major life activity, may qualify for protection. Whether an ailment qualifies as a disability is evaluated on a case-by-case basis, the court said.

If a worker has a disability, FEHA prohibits employers from firing or discriminating against the employee in compensation or in terms, conditions or privileges of employment because of the disability. Under FEHA, being regarded as having a disability is treated the same as actually having the disability, the court explained.

The employer argued that the employee did not have a FEHA-recognized disability, and the court agreed.

The court noted that California regulations exclude from the definition of a FEHA disability those conditions that are mild and do not limit a major life activity, as determined on a case-by-case basis. The regulations give examples of mild conditions, including the common cold, the flu, muscle aches and headaches.

The court therefore concluded that when COVID-19 presents with temporary symptoms similar to those of the common cold or seasonal flu, COVID-19 will fall outside the FEHA definition of ailments considered a disability.

The court added, however, that for some individuals COVID-19 can cause exceedingly severe, even deadly, symptoms with long durations that would easily qualify as a FEHA disability. The court further noted that long COVID-19 may fall within FEHA's definition of disability.

The court also concluded that there was no evidence that the employee was terminated because the employer regarded her as having a disability, and ruled that the lawsuit could not go forward.

Roman v. Hertz Local Edition Corp., S.D. Calif., No. 20-cv-2462 (May 16, 2022).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.