Last week, the Eastern District of Pennsylvania ruled that an employee whose employment was terminated on the same day she disclosed to her employer that she had tested positive for COVID-19 sufficiently pled a claim of “regarded as” disability discrimination under the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”).  In denying the employer’s motion to dismiss the employee’s claims, the court signaled that COVID-19 may be considered a disability under the ADA and PHRA, a potentially significant development.

The court cited recent guidance jointly developed by the Department of Health and Human Services and Department of Justice stating that certain forms of COVID-19 can “substantially limit major life activity,” including one’s respiratory function, gastrointestinal function, and brain function, for periods lasting months after first being infected.  The court also relied on the employee’s disclosure of symptoms common to certain forms of COVID-19 that can carry longer-term impairment of major life function, such as loss of taste and smell, in declining to dismiss the claims.  In so doing, the court rejected the employer’s main argument that COVID-19 was “transitory and minor,” which designation would have excluded the impairment from being the basis of a viable “regarded as” claim.  Also significant to the court was the fact that the employee was terminated the very same day she disclosed to her employer that she had tested positive for COVID-19.  The court noted that the immediate temporal proximity between the employee’s disclosure of her COVID-19 symptoms and her positive test result and her termination raised a strong inference that her employer regarded her as disabled.

The opinion is available here.

Given the procedural posture of this case, i.e., the court denied a motion to dismiss, it is still an open question as to whether an employee with COVID-19 qualifies for one of the ADA’s three categories of disability, which include (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment.  The lawsuit is one of several in courts across the country considering whether COVID-19 may rise to the level of a disability.  If contracting COVID-19 meets the definition of a disability, a worker with COVID-19 would be entitled to reasonable accommodations, which may include telework or leave.  Accordingly, employers should stay tuned to see how courts address this important question.