On September 28, 2021, Venable LLP attorneys Brian Clark and Allison Gotfried secured for a client what could prove to be a far-reaching ruling on the issue of whether individuals with an underlying condition that places them at an "elevated risk of complications" from exposure to COVID-19, without more, are qualified as "disabled," entitling them to job accommodations under the Federal Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 (Rehabilitation Act). Background: the case involved a registered nurse (RN) who worked in the surgical intensive care unit (ICU) at a hospital. Plaintiff was in his mid-20s when he contracted COVID-19—allegedly after caring for a COVID-19-positive patient—and was out on leave for approximately three weeks. When he returned to work after fully recovering, Plaintiff asked the hospital to obtain for him a fitted Powered Air Purifying Respirator (PAPR), because he claimed the N95 mask provided by the hospital did not properly fit. When the hospital rejected this request, he then asked to be transferred to a "non- COVID" area of the hospital. When the hospital rejected his transfer request, Plaintiff resigned. Notably, these events occurred around March 2020, at the height of the COVID-19 crisis, where the hospital's ICU unit was overwhelmed with patients, and the hospital was only treating COVID-19 patients.
The Plaintiff brought suit claiming, among other things, that he had been discriminated against and denied job accommodations on the basis that (i) he was disabled, as someone who had been infected with COVID-19; (ii) the hospital perceived him as infectious (and, therefore, disabled) when he returned from his COVID-19 recovery; and (iii) he was disabled because he suffered from a chronic kidney condition that put him at an "elevated risk of complications" from exposure to COVID-19. The Court analyzed these claims, applying the established ADA and Rehabilitation Act standards of "disability", which require that the person suffers from a physical or mental impairment which substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. The Court easily disposed of Plaintiff's claim that his COVID-19 infection (from which he had recovered) rendered him "disabled" by ruling that Plaintiff did not set forth sufficient allegations to find that his claimed limited ability to taste or smell was more than of a temporary nature, nor that the ability to smell constitutes or impacts a major life activity. Further, the Court found that Plaintiff's allegations did not support a finding that his loss of taste "substantially limited" his ability to eat (a major life activity). With respect to Plaintiff's second basis—that the hospital perceived him as infectious—the Court noted that "perception of infectiousness is not the same as perceived disability" and that Plaintiff admitted that the medical consensus was that individuals who recovered from COVID-19 were not risks for spreading the disease, and that reinfection was unlikely.
Most importantly, the Court held that Plaintiff's chronic kidney disease—which he claimed put him at an "elevated risk of complications" from exposure to COVID-19—could not, by itself, form the basis for a claim, as he failed to allege how it substantially limited a major life activity prior to contracting COVID-19. The Court focused on the fact that analysis of whether someone is "disabled" hinges on whether the underlying condition itself subjects the individual to substantial limitations, not the impact of an intervening event on the underlying condition, such as contracting COVID-19. Here, the Court noted Plaintiff, as alleged, had been suffering from the chronic kidney condition since childhood, but it had not previously impacted his ability to perform his duties as an ICU RN. Based on its finding that neither Plaintiff's prior COVID-19 infection, nor his lifelong chronic kidney disease (or the potential for serious complications from COVID-19) limited his ability to work, the Court ruled the Plaintiff was not "disabled" under the ADA or the Rehabilitation Act, and it dismissed his claims.
We believe this decision is the first to address the issue of whether an individual's "elevated risk of complications" from COVID-19 qualifies as a "disability" under the ADA and the Rehabilitation Act. We are sure there will be more decisions on this in the future. One note of caution as to this decision is that it did present favorable facts for the employer: the Plaintiff was in his mid-20s, had fully recovered from COVID-19 (and thus had obtained a high level of immunity), and had been previously working as an ICU RN exposed to infectious diseases, without raising any issues or requesting accommodations for his chronic kidney condition. We will keep you apprised as courts deal with the issue going forward.
The case is Nicholas Earl v. Good Samaritan Hospital of Suffern, et al., 20-cv-3119 (NSR) (S.D.N.Y.).