What Do You Think: Did Mask Requirement Raise 'Regarded As' Claim under ADA?

Portland, OR (WorkersCompensation.com) – Long COVID has been in the news for a good chunk of the pandemic, but how long does COVID last for purposes of a “regarded as” claim under the ADA?

A federal court recently addressed that question when a city employee took issue with COVID-related mask rules at work.

The employee took issue with the city’s requirement that individuals wear masks indoors to stop the spread of COVID-19. Specifically, the employee contended that the city required her to use a mask because it perceived that she had an infectious disease and, thereby, that she had a disability.

The employee sued under the ADA after she refused to follow the city’s vaccine mandate and was terminated as a result.

The ADA protects employees who have a physical or mental impairment that limits their major life activities and employees who are regarded as having such an impairment. However, employees cannot sue under the “regarded as” prong for being regarded as having an impairment that is transitory and minor, which means an impairment with an actual or expected duration of six months or less.

Did the employee establish an ADA “regard as” claim based on the mask requirement?

A. Yes. COVID-19 is substantially limiting impairment that can, in the cases of long COVID, last more than six months.

B. No. Being perceived as having COVID-19 is not a cognizable disability under the ADA.

If you picked B, you agreed with the court in Thompson v. City of Tualatin, No. 3:21-cv-01587-MO (D. Or. 03/11/22), which dismissed the employee’s ADA claims. According to the court, the employee could not establish a “regarded as” claim attached to COVID-19 because “the vast majority of cases of COVID-19 last fewer than 20 days,” meaning that, in the court’s view, COVID-19 was a “transitory and minor” impairment.”

This feature does not provide legal advice.

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