COVID-19 AND THE AMERICANS WITH DISABILITIES ACT: WHEN MIGHT THE DISEASE BE CONSIDERED A DISABILITY FOR WHICH EMPLOYEES HAVE LEGAL PROTECTIONS IN THE WORKPLACE?

ABSTRACT

Since the coronavirus pandemic began in the United States in early 2020, employers, legal practitioners, federal and state agencies, and the courts have wrangled with whether and in what circumstances workers impacted by COVID-19 (COVID) may have legal protections at work. Because the virus is novel, case law and other legal authorities are scarce. However, these questions are likely to persist well into the future as the virus continues to evolve and the pandemic rages on. This Article explores whether and in what circumstances courts in the Tenth Circuit are likely to treat COVID as a “disability” under the Americans with Disabilities Act of 1990 (ADA),1 thereby affording workers impacted by the illness some legal protections at work. Analogizing to judicial treatment of Human Immunodeficincy Virus (HIV) infections in the employment context, this Article argues that, despite the often temporary nature of COVID illness, there are some circumstances in which courts are likely to deem the illness a disability under the ADA. This Article also explores whether workers who are not ill themselves, but who are associated with a person suffering from COVID, may enjoy some legal protections at work. Finally, this Article examines whether employers may be prohibited from retaliating against workers who engage in protected activity for COVID-related issues. © 2022 Denver University Law Review. All rights reserved.