Labor & Employment Law Daily Employee fired after brother tests positive for COVID can’t advance associational discrimination claim
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Friday, May 14, 2021

Employee fired after brother tests positive for COVID can’t advance associational discrimination claim

By Kathleen Kapusta, J.D.

The court had little trouble disagreeing with the employee’s “legally flawed position” that anyone alleged to have COVID-19 is disabled under the ADA.

An employee who was fired after she “forgot” to tell her employer about a conversation she had with her brother/coworker shortly before he became ill with COVID-19 failed to sufficiently allege her brother’s COVID-19 infection was a disability as that term is defined in the ADA, ruled a federal district court in Georgia. Therefore, she failed to state a claim of discrimination based on her association with him, the court held, dismissing her ADA associational discrimination claim (Champion v. Mannington Mills, Inc., May 10, 2021, Self, T., III).

Parking lot conversation. In March 2020, the employee, a quality assurance technician at a manufacturing facility, had a conversation with her brother in the facility’s parking lot after the end of her shift but prior to the start of his. According to the employee, during the conversation, her brother remained in his car while she stood several feet away. When the brother started feeling ill several hours later, the employer sent him to the ER where he was tested for COVID-19.

No disclosure. Upon learning of the brother’s positive test results four days later, the HR director contacted the employee before she came to work and asked whether she had been around her brother on the day he got sick. Forgetting about their parking lot conversation, the employee said no.

Sent home. Sometime after she arrived at work, her supervisor told the employee that three of her coworkers had seen her talking to her brother in the parking lot and they claimed she had been in his car. The employee then remembered the conversation, although she denied being in the car, and apologized for forgetting about it earlier. Although her supervisor sent her home to quarantine, he called her the next day and accused her of dishonesty. The day after that, he fired her.

Alleging that of all the employees who had contact with her brother, she was the only one not permitted to work from home, take paid leave while in quarantine, or continue working on-site even at higher rates of pay, and was the only one made to feel “diseased” and “discarded,” the employee sued for associational discrimination in violation of the ADA. She was not, she claimed, in close contact with her brother, as defined by the CDC, at the time he was infected.

Disability? Whether the employee stated a claim under the ADA, said the court, “depends entirely on the answer to one question: was her brother’s COVID-19 infection a ‘disability’ as that term is defined” in the ADA. The employee alleged that her brother became ill at work on March 26, went to the ER, took a COVID-19 test, and quarantined while awaiting his test results, which came back positive four days later. She also alleged that COVID-19 is a physical impairment arising from a contagious virus.

Further, she asserted, infection from the virus causes an individual to develop symptoms that can impact the respiratory, immune, and nervous symptoms and some people develop acute respiratory distress syndrome. As a result, she continued, infection with coronavirus can substantially limit several major life activities. Contending, then, that COVID-19 is a disability under the ADA, she argued that at the motion to dismiss stage, it was sufficient to allege her brother suffered from the illness and there was no need to “intricately describe each of the effects COVID-19 had” on him.

Fell short. Disagreeing, the court found that while an intricate description of his condition was not necessary, she needed to allege enough facts to explain how the ailment substantially limited a major life activity and “not alleging a single symptom that [her brother] suffered showing why he was physically or mentally unable to work falls well short.” She alleged that coronavirus can substantially limit several major life activities, but she did not allege that it substantially limited any of her brother’s life activities.

Ability to work. Nor did the employee’s allegation that her brother left work to go to the ER when he started experiencing COVID symptoms, and that he had to miss several days of work due to his COVID-19 infection, show that his ability to work was substantially limited, said the court. If, as she asserted, that did rise to the level of a disability under the ADA, “then employers across the nation will be shocked to learn that if any of their employees are sick for just a few days, then those employees are ‘disabled’ and now protected by the ADA.”

The employee never alleged that her brother could not work from home or that he was unable to work any type of job due to his infection, the court observed. Rather, at most, she alleged her brother caught COVID-19 and his employer did not allow him to work due to the required quarantine period, something employees with COVID-19 and those merely exposed to it must do.

Ability to communicate. Additionally, the employee’s assertion that her brother was substantially limited in his ability to communicate also fell short, said the court, noting that she pointed to no law in support of her contention that in-person communication is a major life activity. “To believe otherwise would mean that any of the millions of Americans who quarantined, including those without COVID-19, those infected but asymptomatic, and those who were seriously ill, were suddenly ‘disabled’ under the ADA.”

Regarded as. Finally, rejecting the employee’s claim she was regarded-as disabled, the court explained that an associational discrimination claim can’t be based on an employee’s association with a person merely regarded as disabled. Rather, associational discrimination consists of discrimination based on one’s association with someone with a “known disability,” which, the court pointed out, is “distinct from a disability merely regarded as such.”

And even assuming a regarded-as claim could be based on an association with a person merely regarded-as disabled, the employee failed to allege any facts showing her employer regarded her brother as disabled. “Just because [her brother] stayed home after testing positive for COVID-19, as did millions of other Americans,” did not mean the employer regarded him as disabled or discriminated against the employee because she associated with him.

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