?Although both the New Jersey Law Against Discrimination (LAD) and the federal Americans with Disabilities Act (ADA) prohibit disability and perceived disability discrimination in the workplace, the LAD definition of “disability” is significantly broader than the ADA definition.
As a result, many employers have assumed – often correctly – that virtually any medical condition may constitute a covered disability under the LAD, triggering that law’s reasonable accommodation obligations and termination precautions.
On June 7, in Guzman v. M. Teixeira International, Inc., the New Jersey Appellate Division showed a willingness to limit the LAD’s seemingly boundless definition of “disabled,” ruling against an employee alleging a perceived disability claim involving COVID-19.
Under both the ADA and LAD, employers are prohibited from discriminating against workers on the basis of a physical or mental disability with regard to employment and its terms, conditions, and privileges. Both statutes impose a duty to provide a reasonable accommodation for an individual’s disability and to engage in an interactive process to find an accommodation, if possible. Where they most fundamentally differ, however, is how each law defines disability.
The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment, regardless of whether the impairment limits or is perceived to limit a major life activity.
Consistent with the “substantially limiting” qualifier of the first two definitions, under the third definition, the ADA further curtails an individual’s ability to state a “regarded as” claim if the impairment is “transitory and minor,” with a “transitory impairment” defined as one with an “actual or expected duration of six months or less.”
The LAD’s definition of disability is much broader, imposing no “substantially limiting” of a “major life activity,” or beyond “transitory and minor,” restrictions on its scope. Under the LAD, a disability is any
physical or sensory disability, infirmity, malformation, or disfigurement that is caused by bodily injury, birth defect, or illness. It includes epilepsy, paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impairment, muteness or speech impairment, AIDS, HIV infection, and any mental, psychological, or developmental disability, including autism.
Unlike under the ADA, under the LAD, an employee who is perceived to have or is regarded as having a disability is protected to the same extent as someone who is disabled, as long as that perceived characteristic, if genuine, would qualify as a disability.
The Guzman Decision
The plaintiff was a machine operator who reported to work feeling ill on July 23, 2020. He told the company’s CEO he felt “cold, clammy, and weak,” but agreed to stay until the end of the day when asked to do so. Later that night, the CEO advised the plaintiff he could not return to work until he took a COVID-19 test.
The next day, the plaintiff had the COVID-19 test. While waiting for the results, he told the CEO he was feeling better and offered to return to work while remaining socially distanced from others. However, on July 29, 2020, before the plaintiff received test results, the CEO terminated his employment, allegedly telling him it was because he had COVID symptoms and could not provide a negative test result.
The plaintiff sued under the LAD, contending the company wrongfully terminated him because he was perceived as suffering from COVID-19. The trial court dismissed his complaint for failure to state a claim, concluding that COVID-19 was not a disability under the LAD.
The Appellate Division agreed, finding the plaintiff did not meet the threshold element of his perceived disability discrimination claim, even if his employer believed he had COVID-19. Noting “not every illness will constitute a disability under the LAD,” the Appellate Division said the statute “must be sensibly and practically applied.” In doing so, the Appellate Division emphasized the transitory nature of the plaintiff’s illness and the sequence of events preceding his termination.
Specifically, the plaintiff only alleged he felt “cold, clammy and weak” and did not allege he sought medical treatment after falling ill. He was terminated only after he had told the CEO that his condition had improved, and he was well enough to work. The Appellate Division held that under those facts, the plaintiff failed to show he had a disability or was perceived as having a disability, even under the LAD’s broad definition of the term.
Impact of the Decision and Recommendations
In Guzman, the Appellate Division provided a dose of common-sense limitations on the scope of what constitutes a disability under the LAD. While not expressly exempting all COVID-19 infections or similar ailments from the LAD’s protections, the court held that a transient and minor bout of COVID-19 is not a covered disability.
The decision brings the LAD more in line with the EEOC’s recent guidance on whether a person with COVID-19 or “long COVID” can be regarded as an individual with a disability under the ADA. While the court recognized that such a determination is case-specific and depends on the extent and severity of the illness, it also brought a reasonableness element into considering whether someone with minor symptoms of what may not be a serious medical condition should truly be placed on equal footing with those whom the LAD was designed to protect.
Employers should be encouraged by the Appellate Division’s self-described “sensible application” of the LAD. The decision underscores that disability-related inquiries remain highly fact-sensitive.
COVID-19 may impact one employee much differently than another, both in degree and length of symptoms and after-effects. Employers and HR professionals should continue to conduct an individualized assessment and carefully evaluate all disability accommodation requests on a case-by-case basis, taking into account the individualized facts of a particular employee’s circumstances.
Keith J. Rosenblatt, Jonathan M. Carrillo, and Anastasia Stylianou are attorneys with Littler in Newark, N.J. © 2023. All rights reserved. Reprinted with permission.
