Mild symptoms of COVID-19 do not qualify under FEHA

In the case of Michelle Roman v. Hertz Local Edition Corp. A US District Court judge for the Southern District of California issued summary judgment in favor of Hertz and against former employee Michelle Roman, whose employment was terminated after contracting COVID. Roman claimed that while she was suffering from mild COVID symptoms, her job should have been protected by the California Fair Employment and Housing Act (FEHA). Hertz terminated Roman’s employment after she came into work sick, which was against company policy. The court ruled that because Roman’s COVID symptoms were mild and transient, she did not qualify as a “disability” under FEHA. Therefore, FEHA did not protect Roman’s job from termination.

Roman worked as a manager for Hertz in National City, California. In 2020, Roman received training from the company on COVID protocols, including that employees showing signs of COVID should not be allowed into the workplace. Despite this training, Roman showed up at work for two days while experiencing mild symptoms of COVID, such as “super mild body aches,” fatigue, and pain in her hips and back that were “killing her.” Roman didn’t think her symptoms were severe enough to be caused by COVID. Still, she took a COVID test to be sure.

The next day, at work, Roman learned that she had tested positive for COVID. She informed her supervisor of the news and was immediately sent home. After two weeks of quarantine and a negative COVID test, Roman attempted to return to work but was instead fired from Hertz for previously coming to work with COVID symptoms, which was against company policy.

The basis of Roman’s lawsuit against Hertz was that she suffered from a disability as a result of her COVID infection. Employees with a disability are entitled to protection from discriminatory and harmful acts under FEHA and to reasonable accommodation. To determine the definition of “disability,” the court examined Cal. code reg. Tit. 2, §11065(d)(9)(B), which provides that a disability does not include conditions that are mild, do not limit an important life activity, and have little to no residual effects. The regulation also provides that common cold, seasonal or common influenza, myalgia, sore muscles and non-migraine headaches are not considered disabilities. Because Roman’s COVID symptoms were mild and did not last, the court found that she did not have a disability under FEHA and therefore was not protected from termination.

In a key caveat, the court noted that while many cases of COVID most closely resemble cold symptoms, some cases are much more severe and long-lasting, which “would easily qualify as an FEHA disability.” Similarly, guidelines from the California Department of Fair Employment and Housing state that “whether an illness associated with COVID reaches the level of disability (as opposed to a typical seasonal illness such as the flu) is an evidence-based determination.” The court further noted that “long COVID” “may well fall under FEHA’s definition of disability.”

If an employee becomes ill with COVID and experiences severe and/or long-lasting symptoms, the employee may have a “disability,” as that term is defined by applicable law. As with any other disability, the employer would then have an obligation to participate in the interactive process, to provide the worker with reasonable accommodation where necessary, and to ensure that the worker does not face discrimination or retaliation because of his or her disability. However, if the worker’s COVID symptoms are mild and short-lived, the employer has no obligation to engage in any of these activities and the worker’s workplace may not be protected.

© 2022 Proskauer Rose GmbH. National Law Review, Volume XII, Number 145

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