All COVID-19 Viewpoints

Is a Positive Covid-19 Diagnosis a Disability?

New York, New York–June 23, 2021–Fensterstock, P.C. attended the New York American Inn of Court – June 23 Virtual Program, which presented Employment Law issues created by the ongoing Covid-19 Pandemic through a live performance of “The Office: An American Workplace” fan fiction. 

One of the issues presented was whether workers who test positive for Covid-19 are protected by the Americans with Disabilities Act (“ADA”). The United States District Court for the Eastern District of Pennsylvania heard the case of Payne v. Woods Services, Inc., CV 20-4651, 2021 WL 603725 (E.D. Pa. Feb. 16, 2021), which addressed the issue. Payne was fired from Woods Services, Inc. (“Woods”) for refusing to return to work before he had completed his quarantine after testing positive for Covid 19, Payne v. Woods Services, Inc., CV 20-4651, 2021 WL 603725, at *1 (E.D. Pa. Feb. 16, 2021). 

Of the 13 counts filed against Woods, three centered on the ADA; “Discrimination in violation of the Americans with Disabilities Act (“ADA”); … Discrimination based on Perception of Disability in violation of the ADA; … Retaliation in violation of the ADA,” id., at *2. 

The court dismissed all three counts, id., at *7 and *8. However, the court did so because Payne failed to allege “any facts regarding his symptoms or impairments as a result of his COVID-19 diagnosis, …[or] … what “major life activity” or activities he was unable to perform as a result,” Payne v. Woods Services, Inc., CV 20-4651, 2021 WL 603725, at *7 (E.D. Pa. Feb. 16, 2021). 

Therefore, as the complaint was dismissed because it was insufficient to meet the standard, the court left the door open for the possibility of a Covid 19 ADA claim. 

About Fensterstock, P.C.

Formed in 2018 by attorney Evan S. Fensterstock, a New York Rising Star business litigator for the last six consecutive years, Fensterstock, P.C. represents clients in complex, commercial litigation and employment matters in trials, appeals, and negotiations on both the plaintiff and defense side in New York state and federal courts, and in arbitration, in cases involving breach of contract, indemnification, breach of fiduciary duty, fraud, non-competition agreements and restrictive covenants, defamation, trade secret misappropriation, shareholder derivative suits, negligence, accounting and legal malpractice, false light invasion of privacy, injunctions, and Sarbanes Oxley whistleblower actions. The Fensterstock name has been respected by the legal community for nearly a century, starting with New York Assistant Attorney General Nathaniel Fensterstock (1916-1988), Evan Fensterstock’s grandfather, who wrote the History of New York Social Welfare Legislation in 1941, and Blair C. Fensterstock (1950-2017), Evan Fensterstock’s late father, a Columbia Law Graduate, Harlan Fiske Stone Scholar, and a Top 100 Business Litigator, known for, among other notable matters, trying cases arising out of the 1993 World Trade Center bombings.

Fensterstock, P.C. offers small firm attention with big firm reputation. We value honesty, integrity, hard work, focus, and creative thinking. We actively listen to our clients and have a track record of success.

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