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Early Covid-19 Disability Ruling Offers Blueprint for Lawsuits

Feb. 25, 2022, 10:30 AM

One of the first courts to address whether employees with Covid-19 can claim disability bias after being fired provides some guidance for employers in an emerging litigation area, according to attorneys.

The U.S. District Court for the Middle District of Alabama said Wednesday that a nursing assistant in Alabama who was fired for following Covid-19 quarantine protocol after testing positive and presenting severe symptoms can pursue her disability bias lawsuit. The Montgomery, Ala.-based court is one of the first tribunals to weigh in on the issue.

Judge R. Austin Huffaker Jr. said the worker, Lucious Brown, adequately claimed that her symptoms could be an actual disability under the Americans with Disabilities Act or regarded as such by her employer, permitting her lawsuit to proceed. The opinion could be useful for employers continuing to navigate the central question of how to accommodate employees who contract the virus, and what the litigation landscape might resemble as challenges proceed in court.

“I think the judge actually engaged in a very thoughtful analysis of ‘is this a disability, or isn’t it?’” said Devjani Mishra, a shareholder with Littler Mendelson P.C. who counsels employers on workplace matters and heads the firm’s Covid-19 task force and return-to-work team. She said the judge’s analysis is helpful, even at the lawsuit’s procedural stage, to analyze the ADA as it specifically relates to Covid-19.

Lawyers for Brown’s employers, Roanoke Rehabilitation & Healthcare Center and Ball Healthcare Services Inc., didn’t immediately respond to email and phone messages requesting comment on the ruling.

Guidance released by the U.S. Equal Employment Opportunity Commission in December said that some cases of Covid-19 may qualify as a disability, but the determination remains fact-specific: Employers must engage in the interactive process as required by the ADA.

Huffaker’s opinion provides more guidance for employers, even if it doesn’t break “new ground,” according to Karla Grossenbacher, a Washington, D.C.-based partner with Seyfarth Shaw LLP.

“These are the same types of analyses we have always engaged in when looking at a disability claim,” she said.

Employer Guidance

Attorneys said they’re continuing to advise clients to assess workers with Covid-19 requesting accommodations on an individual basis, even as they predict that litigation in this area will continue to arise.

“We’re going to be seeing claims related to disability arising out of Covid,” Grossenbacher said. “People, I think, were just doing the best they could to do analyze the situation.”

Huffaker called Brown’s case an example of the “new wave of legal issues” ushered in by the pandemic. But Jennifer Stefanick Barna, senior counsel with Epstein Becker & Green P.C., disagreed, saying that employers have had to analyze medical conditions in the context of the ADA for years.

She described Covid-19 as a “newer medical condition within that existing framework.”

“It’s worth noting that the sheer scope of the Covid-19 pandemic and its impact on the workplace means it’s likely to mean an increase in litigation,” she said.

Employers encounter challenges when they assume that a medical condition is not a disability, according to Brian East, a senior attorney with the organization Disability Rights Texas, and “roll the dice” instead of reasonably accommodating the worker.

He said the opinion is novel because it is one of the earliest of its kind, even if it “tracks the statute closely, so in that way its analysis should be unremarkable.”

“I think these early decisions are going to be very critical in shaping the analysis,” Grossenbacher said.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editor responsible for this story: Andrew Harris at aharris@bloomberglaw.com, Melissa B. Robinson at mrobinson@bloomberglaw.com