Today’s blog entry deals with two questions when it comes to regarded as claims. First, just what does a person have to show to qualify for a regarded as claim? Second, for the transitory and minor exception to apply, must that be a situation where the illness is both transitory AND minor? As we will see, plaintiff survives a motion to dismiss on both grounds even though the court applies a pre-ADA amendments standard to the first question. The case of the day is Matias v. Terrapin House, Inc. decided by the United States District Court for the Eastern District of Pennsylvania on September 16, 2021, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning why plaintiff’s regarded as claim survives the motion to dismiss; transitory and minor; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.
Plaintiff was employed with Terrapin from approximately August 28, 2020 until November 22, 2020 as a direct support professional. She alleged that she received no discipline during the course of her employment until her termination on November 22, 2020. On that date, she informed Terrapin of her need for leave under the Family First Coronavirus Relief Act and disclose to Terrapin that she had received a positive Covid-19 test result. More particularly, on November 19, 2020 she texted a representative Terrapin to inform them that she felt ill. When the representative inquired into whether she was experiencing symptoms, she responded that she was losing her sense of taste and smell. Rather than provide leave, Terrapin terminated her on the same date she informed them of her positive Covid-19 test saying that she was not a good fit. She brought suit alleging violations of the Family First Coronavirus Response Act, the ADA, and the Pennsylvania Human Relations Act.
Court’s Reasoning Why Plaintiff’s Regarded as Claim Survives the Motion To Dismiss
- An individual meets the requirement of being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
- To prevail, a plaintiff has to show that her employer misinterpreted information about her limitations to conclude that she was unable to perform a wide range or class of jobs.
- A plaintiff must show that the employer believed that a major life activity was substantially limited by the plaintiff’s impairment.
- An exception for ADA regarded as claims exists for impairments that are transitory and minor.
- In order to make out a regarded as claim, plaintiff must allege that her employer perceived her to have a disability and that her employer perceived that disability to substantially impair a major life activity.
- Citing to the joint guidance on long-haul Covid-19 put out by the DOJ and HHS, which we discussed here, Covid-19 is a physiological condition affecting one or more body systems.
- The guidance states that certain forms of Covid-19 can substantially limit major life activities, such as respiratory function, gastrointestinal function, and brain function for periods lasting months after first being infected.
- Loss of taste or smell is one of the common symptoms of long-haul Covid-19, and plaintiff felt that she was losing her sense of taste and smell.
- The immediate temporal proximity between plaintiff’s disclosure of her Covid-19 symptoms, her positive test result, and her termination raises a strong inference that her employer regarded her as disabled.
Transitory and Minor
- Courts have made clear that transitory and minor are two separate criteria and a defendant must establish both in order to prevail in its defense.
- CDC indicates that Covid-19 carries with it symptoms, including fever, chills, cough, shortness of breath, difficulty breathing, fatigue, muscle or body aches, headaches, new loss of taste or smell, sore throat, congestion, runny nose, nausea or vomiting, and diarrhea.
- According to the CDC, Covid-19 can damage the heart, blood vessel, kidneys, brain, skin, eyes, and gastrointestinal organs.
- The CDC recommends one seek immediate medical care if they experience trouble breathing, persistent pain or pressure in the chest, new confusion, inability to wake or stay awake, or pale, gray, or blue colored skin, lips, or nail beds.
- In a footnote, the court noted that it was taking judicial notice of certain facts regarding Covid-19 “posted by the CDC on its official website.
- On November 22, 2020, the day plaintiff was terminated, the CDC recorded over 176,000 new Covid-19 cases in the United States alone.
- The hospitalization and mortality profiles of the seasonal flu pale in comparison to those associated with Covid-19. While an average of 422,000 people in the United States are hospitalized each year due to the seasonal flu, domestic Covid-19 hospitalization between August 1, 2020 and September 10, 2021 totaling over 2,876,000 people. So when viewed from the perspective of mortality, Covid-19 proves to be more deadly than the seasonal flu. Therefore, Covid-19 viewed objectively is not minor as contemplated by the amendments to the ADA.
- An employer may not defeat regarded as coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor. Instead, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor.
- Plaintiff survived a motion to dismiss despite the court applying the wrong standard in numerous places. You don’t see that a lot.
- The court refers to a plaintiff having to show that she was unable to perform a wide range or class of jobs. The only time this comes up is where the plaintiff alleges that working is the major life activity. Considering the amendments to the ADA, it is legal malpractice for a plaintiff’s attorney to allege working as the major life activity unless he or she absolutely has no other alternative. The wide range or class of jobs comes from Sutton v. United Airlines, here, which was overruled in many respects by the amendments to the ADA but not with respect to working as the major life activity.
- A plaintiff for a regarded as claim does not have to show that an employer believed that a major life activity was substantially limited. After the amendments, all a plaintiff has to show is that the employer regarded the individual as having a physical or mental impairment.
- Transitory and minor means exactly that. That is, for the transitory and minor exception for regarded as claims to come into play, the condition at issue must be BOTH transitory and minor. They are two separate criteria. As the court makes clear, Covid-19 is certainly not minor and it may or may not be transitory.
- Proximity between the adverse action and the right exercised always matters in these cases.
- Transitory and minor is an affirmative defense that must be established by the employer.
- The transitory and minor exception only applies to regarded as claims, though it can be helpful as a tool for figuring out whether a temporary disability is an actual disability per the actual disability prong.
- CDC guidelines was given judicial notice by the court. This could be very important for plaintiff attorneys to keep in mind when dealing with refusal to accommodate in the face of anti-mask and anti-vaccine policies where their client is immuno-compromised or at a much higher risk of severe consequences of getting Covid-19 due to underlying conditions.
- Transitory AND minor is an objective standard that is not dependent on an employer’s subjective belief.
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