A federal judge has decided that while COVID-19 can qualify as a disability, a Colorado Springs woman terminated from her job at the outset of the pandemic failed to establish her employer violated the Americans with Disabilities Act through its reaction to a COVID-19 diagnosis. 

Tammy L. Baum, a former accounts receivable clerk for Dunmire Property Management, Inc., claimed the company fired her shortly after learning her father was hospitalized with COVID-19 in March 2020. The ADA prohibits employers from discriminating against people with disabilities, but its protections also extend to workers who have established relationships with a disabled person.

That “association provision” of the law is meant to guard against stereotypes or assumptions about people who have disabled family members. Baum asserted that her father’s COVID-19 diagnosis, coupled with his longstanding respiratory issues, constituted a disability that Dunmire knew about when it terminated her.

U.S. District Court Judge Christine M. Arguello dismissed Baum’s lawsuit last week. Although Baum had sufficiently demonstrated an association with her father and an adverse employment action against her, there was a missing link from the failure to establish her father’s COVID-19 as a disability.

“Federal courts around the country are grappling with whether COVID-19 constitutes a disability under the ADA,” Arguello wrote in her March 25 order. “However, the common theme in this regulatory guidance is that COVID-19 may be a disability when it is long-term – lasting for months – not when it is acute.”

Julian G.G. Wolfson, a lawyer with HKM Employment Attorneys, did not believe the ruling represented a major shift, given the specific facts of Baum’s case. He noted that Arguello had incorporated the findings of the U.S. Equal Employment Opportunity Commission, which are not binding but may help guide judges’ evaluations of similar cases.

“Another thing that’s important here is she’s clear, on the record, that COVID can constitute a disability. I think that is an important statement in itself,” Wolfson said.

According to Baum’s lawsuit, she sent her supervisor a text message around March 16, 2020, saying Baum’s father was in the hospital for respiratory issues. The supervisor questioned the nature of the symptoms and when Baum last had contact with her father.

She then instructed Baum not to come to the office until she knew the results of her father’s COVID-19 test, for fear of putting others at risk. The supervisor allegedly denied Baum’s request to work remotely.

Days later, Baum wrote to Dunmire’s vice president, mentioning her father and hoping she would not lose her job because of his illness. Baum received a response confirming that company policy was for employees to self-quarantine if they were in contact with someone who was ill.

On March 26, Baum texted an employee, stating her father had tested positive for COVID-19. Two days later, Baum’s supervisor contacted her to say Baum’s position was eliminated and Dunmire was shutting down its office. Baum’s father, James Kinkaid, died on March 31.

Under the ADA, a disability is a physical or mental impairment that substantially limits a major life activity. The EEOC, which enforces workplace discrimination laws, has determined that COVID-19 can fit that description on a case-by-case basis. Asymptomatic cases or mild cases of the novel coronavirus are akin to the common cold, rather than a disability. By comparison, “long COVID” that affects bodily functions and limits major life activities is a disability, according to the EEOC. The agency also warned that employers may violate the ADA by relying on myths or fears about COVID-19 to discriminate against workers.

Baum alleged that her employer’s questions about her father’s illness and Dunmire’s decision to terminate her days after learning of his COVID-19 diagnosis plausibly suggested disability discrimination.

“Plaintiff’s allegations strongly support the inference that had Mr. Kinkaid tested negative for COVID-19, then Dunmire would not have terminated her employment,” wrote Baum’s attorney, Gregory E. Givens. “In short, Dunmire made up its mind to terminate plaintiff based on speculation about potential risks, patronizing assumptions, and generalized fears about COVID-19.”

Dunmire moved to dismiss the lawsuit, saying it was unable to find any court cases that had defined COVID-19 as a disability under the ADA. The company also disputed that Kinkaid’s diagnosis was a factor in Baum’s termination.

Arguello agreed with Dunmire, explaining that the ADA is oriented toward long-term disabilities.

“Although plaintiff’s father died, his illness lasted for only 15 days. Such an acute, short-term illness is too transitory in nature to constitute a disability under the ADA,” she wrote. “If acute, short-term COVID-19 is considered a disability, then millions of Americans would suddenly qualify as disabled under the ADA.”

The judge also emphasized that the ADA’s association provision covers “known” disabilities. Baum had not sufficiently alleged that Dunmire knew her father had a disability when it decided to end her employment.

At least one other court recently reached a different conclusion about the ADA’s applicability to COVID-19. In September, a federal judge in the Eastern District of Pennsylvania declined to dismiss a lawsuit, in which an employer fired the plaintiff the same day she reported her COVID-19 diagnosis. The judge decided it was plausible the company terminated her after believing she had developed a major life impairment. The lawsuit settled soon afterward.

Givens, the lawyer for Baum, said the generalized fear of COVID-19’s effects was also the main line of argument for his client’s discrimination claim. He told Colorado Politics that the parties had settled the case shortly before Arguello’s order, meaning there would be no appeal of her findings.

Arguello dismissed Baum’s further allegations that Dunmire’s requests for her father’s COVID-19 test results amounted to improper use of family medical history under the Genetic Information Nondiscrimination Act. Congress enacted the 2008 law to generally prohibit employers and health insurers from discriminating on the basis of family medical history.

COVID-19 diagnoses are “not the kind of genetic information contemplated by GINA,” Arguello concluded.

The case is Baum v. Dunmire Property Management, Inc.