Under California law, the Fair Employment and Housing Act (FEHA), protects disabled employees from being discriminated against in the workplace. Under the FEHA, a disability can be defined as a physical or mental impairment that limits a major life function, such as working. In order to be protected under disability discrimination laws, an employee must meet one of the following conditions: (1) Have a physical or mental condition limiting a major life activity; (2) Have a record or history of a condition; or (3) Is regarded as having an impairment and subjected to discrimination as a result of the perceived impairment. If an employee has a disability, FEHA prohibits employers from firing or discriminating against the employee in compensation or in terms, conditions, or privileges of employment due to the disability.
This ultimately begs the question then – does contracting COVID-19 qualify as a disability under this definition? It depends. According to a recent California case, an employee experiencing mild symptoms of COVID-19 does not have a qualifying disability under FEHA and is therefore not protected under the law. However, an employee experiencing more severe symptoms or prolonged COVID-19 may be protected.
In Michelle Roman v. Hertz Local Edition Corp., the Court granted summary judgement in favor of Hertz and against former employee Michelle Roman, who was terminated for violating company policy after she contracted COVID-19 and reported to work while feeling sick. The Court held that because Roman’s COVID-19 symptoms were mild and temporary she did not have a qualifying “disability” under FEHA. As such, the Court held that Roman could not proceed with her lawsuit because her job was not protected from termination under FEHA.
The Court noted, however, that although many cases of COVID-19 are mild and present with temporary symptoms similar to the common cold or seasonal flu, there are a fair number of cases of COVID-19 that can cause extremely severe, even fatal, long-lasting symptoms that “would easily qualify as a FEHA disability.” Similarly, the California Department of Fair Employment and Housing guidelines also provide “whether illness related to COVID-19 rises to the level of a disability (as opposed to a typical seasonal illness such as the flu) is a fact-based determination.” The Court further noted that “long COVID” “may well fall within FEHA’s definition of disability.”
Thus, if an employee contracts COVID-19, and experiences severe and/or long-lasting symptoms, the employee may have a qualifying “disability” under FEHA. As with any other disability, the employer would then have an obligation to engage in a timely good faith interactive process and provide the employee with a reasonable accommodation to ensure that the employee is not discriminated or retaliated against because of his or her disability. On the other hand, if the employee’s COVID-19 symptoms are mild and of short duration, the employer may not have any obligation to engage in an interactive process, and the employee’s job may not be protected.
Because the law on COVID-19 continues to develop, if you have questions about whether you have a qualifying disability, or whether your employer has failed to conduct a timely good faith interactive process and/or provide a reasonable accommodation under FEHA, please feel free to contact our office for a free consultation.