Federal and state disability discrimination laws do not currently address whether COVID-19 is a covered disability under their respective statutory schemes. However, given the liberality by which New Jersey’s Law Against Discrimination, N.J.S.A., 10:5-1, et. seq. (the “LAD”) is to be applied and considering the recent enactment of a New Jersey law prohibiting employer’s from taking adverse employment actions against employees who take or request time off due to an infectious disease such as COVID-19, it is likely our New Jersey courts will conclude that contraction and/or documented exposure to COVID-19 will be deemed a covered disability under the LAD.
In Tihara Worthy v. Wellington Estates LLC, et. al., filed in the New Jersey Superior Court on June 15, 2020, Plaintiff Tihara Worthy sued her former employer, Wellington Estates LLC, for wrongful termination, alleging the employer terminated her employment because she had contracted coronavirus disease 2019 (“COVID-19”). Ms. Worthy alleged her termination violated the New Jersey Law Against Discrimination (“LAD”) and common law. According to her complaint, Ms. Worthy worked as a Certified Medical Assistant in Wellington Estates LLC’s senior living and assisted living community in Spring Lake, New Jersey. On or about April 19, 2020, she learned she had tested positive for COVID-19. She immediately notified her employer and commenced a leave of absence. On or about May 11, 2020, after a month-long leave of absence, Ms. Worthy tested negative for COVID-19 and was given a return-to-work date of May 16, 2020. However, before she was scheduled to return to work, her employer’s Executive Director telephoned her and told her she was not welcome to return to work because she had contracted COVID-19 and “could have gotten everyone sick.”
The Americans with Disabilities Act (ADA) defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C.S. § 12102. The LAD defines “disability” as “physical or sensory disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect, or illness…resulting from anatomical, psychological, physiological, or neurological conditions which prevents the typical exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.” N.J.S.A., 10:5-5(q). Hence, as compared to the ADA, the LAD does not contain a requirement that a disability substantially limit a major life activity, as the ADA definition does; thus, an employee who contracts COVID-19 but is not substantially limited in a major life activity may be disabled under the LAD even if found not to be so under the ADA.
Predictive of our state courts finding COVID-19 is a covered disability under the LAD is found in the recent enactment in New Jersey of a law prohibiting employers from taking any adverse employment action against employees who take or request, time off due to an infectious disease so long as the request is supported by a written recommendation from a licensed physician. This so-called COVID-19 Anti-Retaliation Law prohibits an employer, during the public health emergency concerning the COVID-19 pandemic, from terminating or otherwise penalizing an employee if the employee requests or takes time off from work based on the recommendation of a medical professional that the employee take that time off for a specified period of time because the employee has, or is likely to have, an infectious disease. Following a specified period of convalescence or quarantining, the employer may not refuse to reinstate the employee to employment in the position held when the leave began with no reduction in seniority, status, employment benefits, pay or other terms and conditions of employment. N.J.S.A. 34:11D-12. The new law further provides that if an employer violates the provisions of N.J.S.A. 34:11D-12, the affected employee may file a complaint, with the Commissioner of Labor and Workforce Development or in court, to seek reinstatement to employment. If the employer is found to be in violation of N.J.S.A. 34:11D-12.
At Mashel Law LLC, we are well experienced in effectively handling claims of disability discrimination. Call the attorneys at Mashel Law at (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.