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COVID-19, ‘Long COVID,’ and the Legal Protections Against Disability Discrimination in New Jersey

As we enter our third year of living with COVID-19, scientists are coming to learn more and more about the virus and its impacts. One critical thing they’ve discovered is that the virus does not harm all of those infected equally. Some may die fair quickly, some may be entirely asymptomatic and some may have non-lethal but long-lasting damaging effects. Recent guidance produced by the courts and by regulatory authorities has come to the conclusion that COVID may qualify as a “disability” under federal and state employment law and entitle those with COVID to workplace accommodations. If you think your employer has failed to make reasonable efforts to accommodate your long-lasting COVID symptoms, then your employer may be in violation of the law and you should get in touch with a knowledgeable New Jersey disability discrimination lawyer right away.

One of the more important medical breakthroughs has come with the discovery that, for some, COVID-19 is something that does not simply go away fairly quickly or else become critical. For those, there is something called “long COVID,” “long-haul COVID” or “chronic COVID.” According to the U.S. Centers for Disease Control, long COVID refers to cases where “where individuals experience new, returning, or ongoing health problems four or more weeks after being infected with the virus that causes COVID-19.”

The U.S. Equal Employment Opportunity Commission has recognized that long COVID potentially can qualify as a disability under the Americans with Disabilities Act.

Just like other conditions, long COVID is a disability under the ADA if it “substantially limits” one or major life activities like walking, talking, breathing, seeing, or hearing. It can also qualify if the worker has a record of the condition impairing a major life activity, or if it has caused your employer to regard you as having a disability.

COVID May Be a Disability Under Both the ADA and the LAD

The New Jersey Law Against Discrimination has a similar but not identical definition of “disability.” The LAD says that a disability is any “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 that prevent the typical exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.”

Note that the state law definition does not have the “impair a major life activity” requirement that federal law does.

Last year, at least one New Jersey Superior Court declared that COVID meets the LAD’s standard for a disability. The worker in that case was a Certified Medical Assistant at an assisted living facility in Monmouth County. The worker allegedly took an immediate leave of absence after testing positive and did not attempt to return until she had received a negative COVID test. Nevertheless, the employer fired her. In this circumstance, the court said she had an arguable claim of disability discrimination under the LAD.

Also, you do not have to have long COVID, or even have ever contracted COVID at all, to have a winning disability discrimination case based upon COVID. One way an employer can potentially violate federal and state law is by failing to accommodate your condition that meets the statutory standard of a disability. Another way that a violation can occur — and that you can have the basis for a successful disability discrimination case — is if you have proof that your employer believed you had a disability and took an adverse employment action against you as a result.

For example, say you have strong proof that your employer genuinely believed that you had long COVID and subsequently fired you. Taking an adverse employment action against you (which can range from termination to demotion to suspension to reduction of hours to reduction of pay to negative performance appraisals to reassignment in a less-prestigious role, among others) because your employer believed you were disabled is a violation of the laws against disability discrimination, regardless of your actual medical state. Therefore, punishing you because the employer believed you had long COVID is a potential violation even if you never had COVID to any extent.

COVID-related issues represent simply the latest cutting edge in the world of workplace disability discrimination law. Whether the discrimination you endured was something novel (like COVID-related discrimination) or something on the opposite pole, it nevertheless pays to have powerful legal counsel in your corner. Rely on the skillful and diligent New Jersey disability discrimination attorneys at Phillips & Associates to be the tireless and effective legal advocate you deserve. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation today.

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