The Omicron variant of Covid-19 has been spreading like wildfire both among the vaccinated and unvaccinated. Contracting the new strain is causing many to have to take time off of work and out of the office (one would hope). Suppose, however, that once you labor through your quarantine period, you return to the office and find that, upon your entrance, several of your close co-workers are shuffling nervously and averting their gaze from yours. You walk through this air of restlessness towards your office, only to find that your belongings have been neatly packaged in the corner of a now-vacant office. Your boss or supervisor then greets you at the door and notifies you that, effective immediately, you are terminated.
The question naturally arises: what rights do I have? Most likely, none at all. Texas is an at-will state, which entails, essentially, that you may be fired for any conceivable reason that is not related to a protected characteristic (e.g., race, sex, sexual orientation, disability, age, etc.). As broad as the Americans with Disabilities Act may be, it does not cover common, temporary illnesses such as a cold, flu, or even Covid-19. Unfortunately, within the State of Texas, your employer is allowed to terminate you for contracting a common illness.
However, some individuals who have contracted Covid-19 have experienced long-lasting side-effects. These side-effects include swelling, shortness of breath, and memory fog (to only name a few). These side-effects have been shown to persist and continue affecting individuals for years. This has caused many in the legal community to question whether the long-lasting effects of Covid-19 should be considered a disability under the ADA.
To be clear, the ADA considers an ailment a disability if this ailment impedes upon the afflicted individual’s daily life activities. For example, having a limp would affect one’s mobility; having a speech impediment would affect one’s communication; and having Crohn’s disease would affect how one functions throughout the day. The long-lasting effects of Covid-19 (i.e., swelling, shortness of breath, brain fog, etc.), could be considered ailments that affect an individual’s daily life activities to the point where they would require accommodations in the workplace.
The Equal Employment Opportunity Commission has yet to issue guidance on the matter, but the long-lasting effects of Covid-19 are becoming an increasingly prevalent issue given the spread of the Omicron variant. It is worth, however, making a clear distinction. If your employer, at the outset of you contracting Covid-19, terminates you for that reason, then it would more than likely not be protected under the law given that the ADA does not typically protect such discrimination. However, if your employer terminates you, not because you contracted Covid-19, but because of one of the long-lasting effects of Covid-19 that you are suffering with, then it could, potentially, be protected by the ADA. The primary reason is that these long-lasting effects will be affecting your daily life activities, such as your mobility, ability to communicate, and even your ability to process information.
Covid-19 and the law have maintained a complicated relationship. This is due, largely in part, to how recently Covid-19 struck the country as well as the law’s sluggish pace to adapt to new situations and circumstances. Thus, Covid-19, or at the very least, its long-lasting effects, fall within an area of the law that is opaque and developing; it falls neatly within one of the law’s various grey areas. Hence, if the reason or suspected reason, for your termination was due to the long-lasting effects of Covid-19, then you may very well want to consult an employment lawyer and thereby potentially influence the development of a new part of the law.