In Michelle Roman v. Hertz Local Edition Corp., a United States District Court Judge for the Southern District of California granted summary judgment in favor of Hertz, and against former employee Michelle Roman, whose employment was terminated after she contracted COVID.  Roman claimed that her job should have been protected by the California Fair Employment and Housing Act (FEHA) while she suffered from mild symptoms of COVID.  Hertz terminated Roman’s employment after she came to work sick, which violated company policy.  The Court held that because Roman’s COVID symptoms were mild and temporary, they did not qualify as a “disability” under FEHA.  Therefore, FEHA did not protect Roman’s job from termination.

Roman worked as a manager for Hertz in National City, California.  During 2020, Roman received training from the company about COVID protocols, including that employees showing signs of COVID should not be admitted into the workplace.  Despite this training, Roman showed up at work for two days while experiencing mild symptoms of COVID, such as “super mild body aches,” fatigue, and pain in her hips and back that was “killing her.”  Roman did not believe that her symptoms were sufficiently severe to be caused by COVID.  Nevertheless, she took a COVID test to be sure.

The next day while at work, Roman learned that she had tested positive for COVID.  She informed her manager of the news and was immediately sent home.  After quarantining for two weeks, and receiving a negative COVID test, Roman tried to return to work, but instead was fired by Hertz for previously coming to work with symptoms of COVID, which violated company policy.

The basis for Roman’s lawsuit against Hertz was that because she became infected with COVID, she suffered from a disability.  Employees with a disability are entitled to protection against discriminatory and adverse actions under FEHA, as well as a reasonable accommodation.  To determine the definition of “disability,” the Court reviewed Cal. Code Regs. Tit. 2, §11065(d)(9)(B), which provides that a disability does not include conditions that are mild, do not limit a major life activity, and have little to no residual effects.  The regulation further provides that the common cold, seasonal or common influenza, muscle aches, soreness, and non-migraine headaches do not qualify as a disability.  Because Roman’s COVID symptoms were mild and did not linger, the Court found that she did not have a disability under FEHA and, therefore, she was not protected from termination.

In an important caveat, the Court noted that although many cases of COVID most resemble cold like symptoms, some cases are much more severe, with long duration, which “would easily qualify as a FEHA disability.”  Similarly, the California Department of Fair Employment and Housing guidelines provide “whether illness related to COVID rises to the level of a disability (as opposed to a typical seasonal illness such as the flu) is a fact based determination.”  The Court further noted that “long COVID” “may well fall within FEHA’s definition of disability.”

If an employee contracts COVID, and experiences severe and/or long-lasting symptoms, the employee may have a “disability” as that term is defined by applicable law.  As with any other disability, the employer would then have an obligation to engage in the interactive process, provide the employee with a reasonable accommodation, as necessary, and ensure that the employee is not discriminated or retaliated against because of his or her disability.  However, if the employee’s COVID symptoms are mild and of short duration, the employer has no obligation to engage in any of these activities, and the employee’s job may not be protected.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.