A recent U.S. District Court for the Southern District of California granted summary judgement in favor of an employer who terminated an employee for violating company policy prohibiting employees showing signs of COVID from entering the workplace.
The case – Roman v. Hertz Local Edition Corp. (May 2022) – was brought by former employee Michelle Roman against her then employer Hertz Local Edition after Hertz terminated Roman for violating company policy; Roman reported to work two days in a row while suffering from mild symptoms of COVID-19.[i] Roman was trained on Hertz’s COVID-19 protocols and safe practices, including portions of Hertz’s policy making it her responsibility “to know and adhere to the protocols,” one of which was that “employees showing . . . recognized indications of COVID-19 not be admitted to company facilities.” Roman claimed Hertz discriminated against her based on a physical disability (actual and/or perceived)[ii], failed to provide her with a reasonable accommodation or engage in the timely good faith interactive process. The Court saw things differently.
In this case of first impression, Roman argued to the Court that her mild COVID-19 symptoms qualified as an actual or perceived disability under the California Fair Employment and Housing Act (FEHA) and therefore afforded her protection from termination. Absent prior precedents on the issue, the California court looked to regulations issued by the California Department of Fair Employment and Housing (DFEH) whose FEHA regulations are presumed valid and binding under state law. The Court found most helpful the regulations defining what is and what is not considered a condition limiting a major life activity.
A physical disability is defined under the FEHA as a physiological condition that affects one or more body systems. However, it must also limit a major life activity. A condition limits a major life activity if it makes the achievement of the major life activity difficult. The ability to work is considered a major life activity. However, while this definition seems broad, there are limits. California law does not consider a condition that is mild or one that does not limit a major life activity to be a disability. For example, California regulations expressly exclude non-migraine headaches as a disability because they “have little or no residual effects, such as the common cold; seasonal or common influenza.” Whether any ailment qualifies as a disability is always evaluated on a case-by-case basis.
In Roman’s case, the Court determined that when COVID-19 presents with temporary symptoms – those similar to the common cold or seasonal flu – it falls outside the FEHA definition of ailments considered under California law to be a disability. However, the Court did make a point of differentiating between an individual, such as Roman, who contracts COVID-19 and experiences mild symptoms and recovers within a matter of weeks and those individuals who suffer from exceedingly sever, even deadly, symptoms and experience long recovery periods which would “easily qualify as a FEHA disability.” The Court even suggested that this type of “long COVID” “may well fall withing FEHA’s definition of disability.”
The biggest takeaway from Roman for employers is to remember to assess each potential employee disability situation on a case-by-case basis as no two situations are likely to be identical. Even employees who initially experience a mild case of COVID-19 could develop long-COVID symptoms which could possibly qualify as a disabling condition requiring engaging in a timely good faith interactive process to determine if a reasonable accommodation exists which would allow the employee to continue working or return to the workplace.
Members with questions about the FEHA, conducting the timely good faith interactive process or providing reasonable accommodations under the FEHA should contact Western Growers and consider attending one of our upcoming Leave Law Seminars.
[i] Roman testified to symptoms of fatigue, headache, and body aches minor enough to convince her that they could have been the result of exercise or a busy work schedule.
[ii] Roman provided very little evidence to support her allegation that Hertz had terminated her because it regarded her as disabled.