Suit: Hostess fired worker over positive COVID-19 test

Dive Brief:

Hostess Brands violated the Americans with Disabilities Act and the Family and Medical Leave Act when it fired a worker because of her COVID-19 diagnosis and her subsequent request for time off, a recent lawsuit alleged (Williams v. Hostess Brands, No. 21-cv-00210 (M.D. GA, Dec. 8, 2021)).
The worker started experiencing coronavirus symptoms Jan. 19, 2021, according to court documents. She was sent home, and HR instructed her to stay away from work for 10 days. The worker emailed her positive test results to her employer a few days later. On Jan. 28, during her quarantine, Hostess terminated the worker's employment.
Hostess fired the worker because of her disability status — her COVID-19 diagnosis — her perceived disability, and her request for an accommodation of FMLA leave, the complaint said.

Dive Insight:

The plaintiff filed her lawsuit less than one week before the U.S. Equal Employment Opportunity Commission released updated guidance that detailed when COVID-19 is considered a disability under the ADA.

The ADA's three-pronged definition of disability will apply to COVID-19 in the same way it applies to "any other medical condition," EEOC said. A person can have a disability under the ADA if they have an "actual disability," if they have a record of a disability or if they are regarded as an individual with a disability.

EEOC highlighted that the coronavirus does not automatically qualify as a disability. Employers must conduct individualized assessments to determine whether a worker's COVID-19 qualifies as a disability under the ADA, the agency said.

During the individualized assessment, employers will need to consider whether someone's coronavirus diagnosis involves a physical or mental impairment that substantially limits one or more major life activities. Employers will also need to consider whether someone has a record of such an impairment or if a worker is regarded as having such an impairment.

A worker diagnosed with COVID-19 would be substantially limited in respiratory function and related major life activities if they receive supplemental oxygen and experience shortness of breath, fatigue and other virus-related symptoms that last, or are projected to last, several months, EEOC said.

But a worker similarly diagnosed who experiences temporary congestion, headaches and stomach issues is not substantially limited in a major bodily function or life activity. Such a worker "does not have an actual disability under the ADA," EEOC said. "This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness."