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N.G. Asked: Can My Employment be Terminated While I am on Disability Leave for Long COVID?

On July 2, 2022, N.G. Asked:

“I have long COVID and I am currently on disability leave. I just found out that my employer has terminated my employment. Is this disability discrimination?”

Answer:

Title I of the Americans with Disabilities Act (ADA) prohibits private employers with 15 or more employees from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. Several states have also enacted additional laws that supplement the ADA and further protect against disability discrimination in the workplace. An employer’s violation of these laws can represent unlawful disability discrimination. However, an individual must satisfy the ADA’s definition of “disability” and “qualified individual” to be protected by the law.

The ADA defines a disability as a “physical or mental impairment that substantially limits a major life activity,” such as caring for oneself, walking, hearing, breathing, learning, seeing, speaking, and performing manual tasks. This definition also includes major bodily functions, such as the function of your immune system, neurological functions, respiratory functions, digestive functions, and circulatory functions. On July 26, 2021, the U.S. Department of Justice and U.S. Department of Health and Human Services jointly issued guidance that explains how long COVID can satisfy the ADA’s definition of disability. Federal courts have relied on this guidance to protect employees whose employers have discriminated against them on the basis of their disability.

The ADA defines a qualified individual as someone who can perform the essential functions of a position, with or without reasonable accommodation. To satisfy this definition, an employee must otherwise satisfy the skill, experience, education, and other requirements of a position. If an individual is qualified to perform the essential functions of a position except for limitations caused by a disability, an employer must consider reasonable accommodations that would perform the essential functions of a position with a reasonable accommodation.

Disability leave is not typically considered “job-protected leave,” and an employee can be terminated while they are receiving disability benefits through a short-term or long-term disability insurance policy. However, the ADA prohibits employers from terminating an employee because of their disability. Prior to terminating an employee with a disability who is on disability leave, an employer must engage with the employee to determine whether any reasonable accommodations that would allow the employee to return to work. Employers may only avoid this obligation if providing a reasonable accommodation would cause them an “undue hardship,” which is assessed on a case-by-case basis. An employer who terminates a disabled employee without providing a reasonable accommodation that would allow them to return to work can be held liable for wrongful termination and disability discrimination.

An employer who terminates a disabled employee without providing a reasonable accommodation that would allow them to return to work can be held liable for wrongful termination and disability discrimination.

The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency that is charged with enforcing anti-discrimination laws. If you believe that your employer has discriminated against you on the basis of your disability, you must file a charge with the EEOC before you can initiate any further legal action against your former employer. You are not required to work with an attorney to file a charge with the EEOC, but Pandemic Patients recommends meeting with an attorney before filing a charge with the EEOC. There is a 180 calendar day filing deadline to file a charge with the EEOC, which begins on the date of the discriminatory action. This deadline is extended to 300 calendar days if a state or local agency also enforces a law that prohibits employment discrimination on the same basis. After a charge of disability discrimination is filed with the EEOC, the agency will investigate the situation and attempt to settle the dispute on your behalf. If you wish to pursue a lawsuit against your former employer, you can request a “right to sue” letter from the agency, which will authorize you to file a federal lawsuit against your former employer for 90 days following your receipt of the letter.

If you believe that you have been discriminated against by your employer on the basis of your disability, Pandemic Patients recommends reaching out to an experienced employment attorney as soon as possible.

Click here to access other COVID-19 FAQ.

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