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Does COVID-19 constitute a disability under FEHA?

by | Apr 26, 2021 | COVID-19 |

First, under the FEHA an employer is prohibited from discriminating against an employee due to a physical or mental disability. A physical disability is defined as including “any physiological disease, disorder, condition” that affects a person’s neurological or immunological, cardiovascular systems that limits a major life activity. (Gov. Code, § 12926, subd. (m).) More, it includes people who are regarded or treated by an employer as having this condition or who may become a physical disability in the future. Thus, someone who has coronavirus or COVID-19, or has come in contact with someone, would likely fall under this definition. This would also apply if someone is “associated with a person who has, or is perceived to have” the physical disability. (Gov. Code, § 12926, subd. (o).)

More, unlike the Americans with Disabilities Act, transient or temporary conditions may qualify as disabilities. (See Diaz v. Federal Express Corp. (CD CA 2005) 373 F.Supp.2d 1034, 1051-1052 [unlike ADA, FEHA has no durational requirement for evaluation of whether condition constitutes disability]; Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 595.) However, the California Code of Regulations does say that mild conditions “such as the common cold; seasonal or common influenza” may not be a disability, though these would need to be analyzed on a case-by-case basis. (Cal. Code Regs., tit. 2, § 11065(d)(9)(B).) Because the effects of coronavirus/COVID-19 include severe respiratory issues, pneumonia, and possible death, combined with it being a pandemic and the stay-at-home orders, it is highly likely that this would not qualify as the common flu. Rather, this would be one of those temporary conditions that would qualify as a disability.

Furthermore, under the FEHA, an employer is required to engage in a good-faith interactive process and to provide reasonable accommodations for an employee’s physical or mental disability. (Gov. Code, § 12940, subds. (m)-(n).) Reasonable accommodations include leaves of absences, offering part time or modified work schedules, allowing an employee to work from home, providing paid or unpaid leave for treatment and recovery, as well as providing appropriate social distancing measures in the workplace. (Gov. Code, § 12926, subd. (p); Cal. Code Regs., tit. 2, § 11065(p)(2).) This could even include job protection. “Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.) These accommodations must be provided unless the employer can prove that doing so would pose an undue hardship on them. (Gov. Code, § 12940, subd. (m); Cal. Code Regs., tit. 2, § 11068(a).)

Lastly, an employer cannot retaliate against an employee for taking or requesting a leave of absence or a reasonable accommodation.

During this coronavirus/COVID-19 pandemic, providing work from home or leaves of absences is required for all non-essential companies. The FEHA applies to all employers in California that have five or more employees. Thus, almost all employees in California have some basic protections during this pandemic.