Almost two years into the pandemic, federal workplace discrimination officials issued guidance on when an individual who contracted COVID-19 might have a disability under disability law. The overall tenor of the guidance from the Equal Employment Opportunity Commission (EEOC) (which we summarized here) suggested that COVID would be a disability under the Americans with Disabilities Act (ADA) when the individual continued to suffer from COVID-related conditions for a long period after the time of acute illness. Plaintiffs’ attorneys have now brought many cases under the ADA where the worker’s disability is alleged to be a severe case of COVID lasting two to three weeks with no other long-term symptoms – and some courts have been sympathetic to these cases. The resulting line of cases suggests that retail employers may need to exclude COVID-related absences when considering discharging an employee for attendance issues. Understanding when the ADA must be considered in conjunction with an acute case of COVID is important for retail employers to avoid costly missteps.
Some History
The ADA significantly differs from most employment discrimination laws in that ascertaining who the law protects requires some analysis. An employee’s age, gender, and race are readily ascertainable. But not always so with disability status. It often requires deeper examination and sometimes results in situations where you’re just not sure whether the employee has an ADA disability.
Every time an...
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