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Tuesday, June 13, 2023

Defining Disability in the Era of COVID

The definition of “disability” can be complicated in various occupational statutes. In a Law Against Discrimination [LAD] N.J.S.A. 10:5-1 to -50 claim alleging the “perception of COVID” as a disability, the NJ Appellate Court declined to accept the plaintiff's claim. Guzman v. M. Teixeira International, Inc., NJ: Appellate Div. 2023.

The worker, a machine operator, was hired by the employer in January 2018. The employer closed the company down temporarily during the COVID pandemic but reopened in June 2010. On July 25, 2020, the employee reported to work but felt “ill.” The worker went to get a free COVID test at a clinic and, while awaiting the results, offered to return to work and maintain social distancing. The employer terminated the employee.

The judge at the trial level, while recognizing that both physical and mental disability are factors, decided that COVID-19 is a disease. Still, it was not a disability within the scope of the LAD. The Court rationalized that the NJ Legislature did not amend the LAD statute to cover COVID, even though it did so under the NJ Workers’ Compensation Act. N.J.S.A. 34:15-31.11, N.J.S.A. 34:15-31.12.

Judge Gummer, J.A.D., wrote:

“Even assuming defendants believed plaintiff had COVID-19, the facts plaintiff alleged in his pleadings are not sufficient to establish a prima facie case under the LAD that he was terminated because his employer perceived he had a disability. On July 23, 2020, plaintiff felt ill in that he felt ‘cold, clammy, and weak.’ He was able to report to work and stay until the end of the day. The next day, plaintiff was able to go to a free clinic to obtain a COVID-19 test. Plaintiff did not allege he had gone to a hospital or a doctor's office or that he had otherwise sought medical attention or treatment. Some unspecified time before he was terminated, plaintiff reported to Teixeira he ‘was feeling better.’ In fact, he was feeling well enough that he felt able to and offered to return to work. He was terminated after he had reported to Teixeira his condition had improved and he was feeling well enough to work. Those facts as pleaded by plaintiff are not sufficient to show he "qualifies as an individual with a disability, or who is perceived as having a disability, as that has been defined by statute.’ Victor, 203 N.J. at 410." (Victor v. State, 4 A. 3d 126 - NJ: Supreme Court 2010.)

The parallel expressed between the LAD and the Workers’ Compensation Act suggests that state legislatures should consider revising statutory “disability” definitions to encompass all infectious diseases in LAD acts to ensure consistency and coordination in adjudicating all disability claims.  Infectious diseases continue to emerge, and both physical and mental disability claims should receive equal consideration.


By Jon L. Gelman of Wayne, NJ. He is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman  1.973.696.7900 have represented injured workers and their families who have suffered occupational accidents and illnesses.

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Author: "Workers' Compensation Law" West-Thomson-Reuters