Mild, Temporary COVID Symptoms Not a FEHA Disability

Employment Law


A California federal court determined that mild, temporary symptoms of COVID-19 do not qualify as a disability under the Fair Employment and Housing Act (FEHA), granting summary judgment in favor of an employer.

Michelle Roman was a management associate at a Hertz location in National City. During 2020, she and other employees rotated responsibility for conducting COVID-targeted screenings for employees entering the workplace.

To perform the screenings, Roman received training on COVID-safe policies and how to screen employees for COVID-related symptoms, including feeling unwell and experiencing cough or shortness of breath. She understood that it was her responsibility to adhere to the protocols, one of which was not admitting employees with recognized indications of COVID-19 into company facilities.

On September 1, 2020, Roman woke up feeling fine but tired. She reported to work, although she began experiencing “super mild body aches” and felt “super tired” by the time she left. Her symptoms worsened after work, and she suffered from a headache that night.

Roman attributed these symptoms to her busy work schedule and strenuous workouts.

The next day, she felt the same fatigue but again thought the aches were related to her exercise. Despite feeling tired and suffering from pain in her hips and back that was “killing [her],” she worked her normal hours. She also took a COVID test.

Later that night, she texted her supervisor to say she had been feeling bad for two days, noting she had cold symptoms with a cough. Roman did not report to work on September 3.

On September 4, she felt better but still had a headache and reported to work. When she received a positive result from the COVID-19 test at 10 a.m., she went home and did not return.

When she received a negative test result on September 18, Roman reached out to her manager. But she was told not to return to the office because she had violated Hertz’s protocols and policies. Roman was terminated a few days later.

She filed suit, alleging disability discrimination based on an actual and/or perceived disability in violation of FEHA. Hertz moved for summary judgment.

Noting that the issue of whether contracting COVID-19 qualifies as a disability under FEHA was a question of first impression, U.S. District Judge Roger T. Benitez sided with the employer.

FEHA defines a physical disability as a physiological condition that affects one or more body systems; the disability must also limit a major life activity. On the other hand, a disability is not a condition that is mild, and California regulations expressly exclude non-migraine headaches and “conditions [with] little or no residual effects, such as the common cold.”

Lacking guidance from the California Supreme Court or Court of Appeal, Judge Benitez looked to regulations issued by the Department of Fair Employment and Housing (DFEH). The regulations provide a broad definition of physical disability, but Cal. Code Regs. tit. 2, § 11065(d)(9)(B) excludes those “conditions that are mild, which do not limit a major life activity, as determined on a case-by-case basis.”

Applying the guidelines, the court found Roman’s COVID-19 failed to constitute a disability under FEHA.

“When it presents with 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),” Judge Benitez wrote. “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 did note that “for some individuals COVID-19 can cause exceedingly severe, even deadly, symptoms with long durations that would easily qualify as a FEHA disability.”

As for Roman, “the undisputed evidence is that her symptoms met the regulation’s definition of ‘mild,’” the court said. Her fatigue and body aches were minor enough for the first two days to convince her that they could have been the result of her exercise or her busy schedule at work, and although she did experience symptoms for several days, they “were mild enough that she was able to work and carry out her duties.”

Judge Benitez found further support in agency guidance published by the DFEH as well as federal court rulings interpreting the Americans with Disabilities Act (ADA), upon which FEHA is modeled, with the federal courts “mostly” in agreement that a short-term COVID-19 infection does not qualify as an ADA disability.

Roman’s alternative contention—that Hertz’s COVID-19 policy prevented her from working and therefore transformed her infection into a disability—also failed to persuade the court.

“[A]n employer’s legal treatment of an individual cannot form the basis of finding for a disability,” Judge Benitez said. “The statutory language of FEHA reveals that a condition cannot qualify as a disability unless the condition itself reduces the body’s physical or mental capacity to perform activities.”

Nor was Roman discriminated against for being regarded as disabled, the court held, because no evidence was presented that Hertz actually perceived her to be disabled as defined by FEHA.

Although the employer required a COVID-19 test before Roman was allowed to return to work, this was mandated for all employees who answered “yes” to any of the COVID-19 screening questions, and Hertz did not request any medical information from Roman.

Judge Benitez granted the employer’s motion for summary judgment.

To read the order in Roman v. Hertz Local Edition Corp., click here.

Why it matters: The case presented a matter of first impression in California and a strong result for employers facing FEHA claims from employees who have mild COVID-19 symptoms. The court was able to point to several sources—including DFEH regulations and federal court interpretations of ADA guidance—as support for its holding that temporary COVID symptoms akin to the common cold or seasonal flu fall outside the FEHA definition of ailments considered a disability.

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