Seriousness of COVID-19 Defeats 'Transitory and Minor' Defense to Disability Discrimination Charge

01 Oct, 2021 Frank Ferreri


Philadelphia, PA ( – Thankfully for most employees who come down with COVID-19, the infection runs it course fairly quickly and they can get back to work in a couple of weeks, but that's not always the case.

While COVID-19 might be a short-term, transitory impairment for many employees, as an employer learned in Matias v. Terrapin House Inc., No. 5:21-cv-02288 (E.D. Pa. 09/16/21), the numbers the world has been struggling with since March 2020 show that the coronavirus is anything but “minor.”

Positive Test, 'Not a Good Fit'

A direct support professional for a company tested positive for COVID-19 and sought leave under the Families First Coronavirus Response Act. Rather than provide the professional with FFCRA leave, the company terminated her on the same day she revealed the positive test. In her termination letter, the company attributed the decision to the professional’s not being “a good fit,” despite never receiving discipline at the company.

The professional sued the company, claiming that it violated the Americans with Disabilities Act on the basis that the company regarded her as having a disability and terminated her in an act of disability discrimination.

Under the ADA, an employee meets the requirement of being regarded as having an impairment that substantially limits a major life activity if the employee establishes that she has been subjected to an ADA-prohibited action because of an actual or perceived physical or mental impairment. However, the ADA limits “regarded as” claims by excluding impairments that are transitory and minor.

Transitory, but not Minor

According to the court, in denying the company’s motion to dismiss, the professional established her “regarded as” claim and the company did not show that COVID-19 was both transitory and minor.

The court pointed out that the professional texted a representative from the company when she began to feel ill and was terminated on the same day she reported testing positive for the virus.

The court rejected the company’s argument that the professional’s COVID-19 was transitory and minor. In support of its argument, the company pointed out that the FFCRA leave period was only two weeks long, meaning that the professional’s COVID bout was short-term, and, therefore, transitory.

However, the court pointed out that defending against a “regarded as” claim requires an employer to show that the impairment at issue is not just transitory but is also minor. Looking to CDC guidance as well as hospitalization statistics, the court concluded that COVID-19 was not “minor.”

“As of the drafting of this opinion, the COVID-19 pandemic has persisted for over 19 months in the United States,” the court wrote. “During the period beginning Jan. 21, 2020, and ending Sept. 14, 2021, the CDC reported over 41,260,000 confirmed domestic cases and over 658,000 deaths as a result of the COVID-19 pandemic in the United States.”

Although ADA cases related to H1N1 a few years ago found that condition to be transitory and minor, the court explained that COVID-19 was different from the flu.

“Here, the hospitalization and mortality profiles of the seasonal flu pale in comparison to those associated with COVID-19,” the court explained. “Whereas an average of 422,000 people in the United States are hospitalized each year due to the seasonal flu, domestic COVID-19 hospitalizations between Aug. 1, 2020, and Sept. 10, 2021 totaled over 2,876,000.”

The court explained that even if the company thought COVID-19 was minor, that would not have been an adequate defense because the ADA requires an employer to show that the impairment at issue actually is minor to make the argument.

Because COVID-19 was not minor in the court’s view, the court denied the company’s motion to dismiss.

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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law. Frank encourages everyone to consider helping out the Kind Souls Foundation and Kids' Chance of America.

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