In what appears to be the first time, the New Jersey Appellate Division considered whether contracting COVID-19 or exhibiting its symptoms is sufficient for an employee to claim they qualify as an individual with a disability or a perceived disability under the New Jersey Law Against Discrimination (LAD), concluding that – at least in this instance – the employee did not qualify. However, the Appellate Division was careful not to create a bright-line rule that COVID-19 does not qualify as a disability under the LAD; ruling only that, under the specific facts of the case presented to it, the employee did not qualify.
The Facts of the Case
On June 7, the New Jersey Appellate Division in Guzman v. M. Teixeira Int’l, Inc. ruled that an employee who alleged he was terminated because his employer suspected he had contracted COVID-19 could not state a claim for which relief could be granted under the LAD.
Under the LAD, discrimination based on an employee’s qualifying disability, or perceived qualifying disability, is illegal. A qualifying disability under the LAD is broader than under most statutes prohibiting employment discrimination based on disability (such as the federal equivalent, the Americans with Disability Act), in that it is not limited to severe or immutable disabilities, or conditions that result in substantial limitation of a major life activity.
In Guzman, the plaintiff alleged that on or about July 23, 2020, he came to work feeling ill and told his employer he felt “cold, clammy, and weak.” The plaintiff’s employer asked him to work until the end of the day. That evening, the employer called plaintiff at home and told him he was not permitted to return to work until he took a COVID-19 test. The following day, the plaintiff went to a free testing clinic and obtained a COVID-19 test. While waiting for the test results, the plaintiff reported to his employer that he was feeling better and wanted to return to work. The employer then terminated plaintiff’s employment on July 29, 2020, before he received his test results. The plaintiff sued, asserting discrimination based on perceived disability, i.e. contracting COVID-19.
The defendants (specifically, the employer and alleged decision-maker) sought dismissal of the plaintiff’s complaint on the basis that, because COVID-19 is not a qualifying disability, the plaintiff failed to state a claim upon which relief can be granted. The motion judge agreed, initially dismissing the plaintiff’s complaint without prejudice (thereby permitting plaintiff to amend) and, thereafter, with prejudice.
The plaintiff appealed the dismissal and the Appellate Division affirmed. The Appellate Division reasoned that even assuming the defendants believed the plaintiff had contracted COVID-19, the facts alleged were not sufficient to establish a prima facie case under the LAD. The plaintiff was able to finish his working day when he felt ill, took himself to the free COVID-19 test clinic, did not go to a hospital or see a doctor, and reported to his employer that he was feeling better and was able to return to work. In other words, the plaintiff had not sufficiently shown he qualified as an individual with a disability or perceived disability.
This opinion suggests that, at least under the LAD, COVID-19 is not considered a qualifying disability. In other words, adverse employment actions against an employee for contracting COVID-19 are not considered disability discrimination under the LAD. However, the Appellate Division did not go so far as to outright reach that conclusion, at least in this opinion. Rather, it was careful to conclude that, under the specifics facts asserted by plaintiff – perhaps most notably that he reported he was feeling better and was able to return to work before even receiving his COVID-19 test results – the plaintiff did not have a qualifying disability under the LAD.
What This Means for Employers
While this opinion should give employers some comfort with regard to treatment of employees who contract COVID-19, caution is needed. As a preliminary matter, other laws, including the Family and Medical Leave Act, Americans with Disabilities Act, New Jersey Earned Sick Leave Law, and potentially the New Jersey Family Leave Act, could apply to afford employees who contract COVID-19 certain employment protections. Additionally, given the Appellate Division’s concerted effort to focus on the specific facts asserted in plaintiff’s complaint, employers should still take care when an employee reports COVID-19 exposure, symptoms, and/or a positive test.
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