Workers With Mild Symptoms of COVID May Not Be Protected by FEHA

Michelle Roman began working for Hertz Local Edition Corporation in 2018. By 2020, she had been promoted to the position of management associate at the National City, California branch.

During 2020, Roman and other employees rotated responsibility for conducting COVID-targeted screenings for employees entering the workplace. To perform these screenings she received training on COVID-safe policies and how to screen employees for COVID-related symptoms.

She understood that it was her responsibility “to know and adhere to the protocols,” one of which was that “employees showing . . . recognized indications of COVID-19 not be admitted to company facilities.” Recognized indications of COVID-19 included “feeling unwell and experiencing cough or shortness of breath.”

On September 4, after having vague symptoms for a few days while continuing to work, she tested positive for COVID-19 and reported the results to her employer. She was told that because she tested positive for COVID-19 and therefore was not allowed to work, she would receive 80 hours of COVID-19 pay in accordance with Hertz’s policies. She remained quarantined at home until September 18 when she received a negative result from a repeat test taken on September 16.

However she was terminated from employment for violating Hertz COVID protocols for coming to work between September 1-4 despite feeling sick, achy and tired and scheduling a COVID test for herself.

Roman filed suit against Hertz alleging disability discrimination based on an actual and/or perceived disability, wrongful termination in violation of public policy, failure to provide reasonable accommodation, failure to engage in the interactive process, and failure to timely pay wages. The trial court granted summary judgment in favor of Hertz in the case of Roman v Hertz, 20cv2462-BEN (May 2022)

The basis for most of Roman’s claims was that because she became infected with COVID-19 she suffered from a disability (or alternatively was perceived as suffering from a disability). Because she suffered from a disability, she claimed she was entitled to protection against discriminatory and adverse actions under FEHA.

Whether contracting COVID-19 qualifies as a disability under FEHA was a question of first impression. Without guidance from the California courts, the federal Court looked to regulations issued by the California Department of Fair Employment and Housing.

FEHA defines a physical disability as a physiological condition that affects one or more body systems. Cal. Govt. Code § 12926(m)(1)(A). The disability must also limit a major life activity. Id. § 12926(m)(2)(B). A condition limits a major life activity if it makes the achievement of the major life activity difficult. Id. § 12926(j)(1)(B), (m)(1)(B)(ii).

On the other hand, a disability is not a condition that is mild or does not limit a major life activity 2 Cal. Code Regs. § 11065(d)(9)(B).

If one has a disability, FEHA prohibits employers from firing or discriminating against an employee in “compensation or in terms, conditions, or privileges of employment” because of the disability. Cal. Gov. Code § 12940(a). FEHA instructs courts to construe its protections broadly.

Hertz contends that Roman’s COVID-19 infection falls under Cal. Code Regs. tit. 2, § 11065(d)(9)(B), which excludes certain conditions from FEHA’s definition of disability. Roman disagrees, claiming that her infection, although temporary, qualified as a disability.

The Court concluded that “temporary symptoms akin to the common cold or seasonal flu, COVID-19 will fall outside the FEHA definition of ailments considered a disability, pursuant to § 11065(d)(9)(B). Because the facts on summary judgment about Roman’s COVID-19 infection are not genuinely disputed, and because the symptoms of her infection were mild with little or no residual effects, Roman’s COVID-19 infection is excluded from FEHA’s definition of disability.”

The Court noted however that “it should not go without saying that for some individuals COVID-19 can cause exceedingly severe, even deadly, symptoms with long durations that would easily qualify as a FEHA disability.”

Workers With Mild Symptoms of COVID May Not Be Protected by FEHA

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