Mr E has had chronic kidney disease since he was an infant. In 2018, when he was in his early 20s, he graduated from nursing school and took a job as a registered nurse in the surgical intensive care unit of a New York City area hospital. In the fall of 2019, Mr E was given a fit test to ensure he had a mask with a proper fit. The test allegedly indicated that he needed a powered air-purifying respirator (PAPR), yet the hospital never provided him with one despite his repeated requests.
In March 2020, Mr E was assigned to care for a gravely ill patient with pneumonia. The patient was not tested for SARS-CoV-2 because the supervising physician believed that pneumonia needed to be on both sides of the lungs to justify a COVID-19 test. Personal protective equipment (PPE) such as N95 masks were being kept by supervisors or designated only for use with suspected COVID-19 patients.
Mr E feared the patient had COVID-19 and requested a proper mask for his own protection. When he failed to obtain the mask, he texted his supervisor to explain to her that he lived with his parents who had hypertension, diabetes, and obesity and were at risk for COVID-19. He also noted his history of chronic kidney disease and his concern that his kidneys would shut down if he became infected. His supervisors were not sympathetic and Mr E managed to locate one surgical mask.
The patient died the next day and his family requested a postmortem COVID-19 test, which was positive. Mr E was tested for COVID-19 and also tested positive; he was out of work for close to a month.
After he recovered, he returned to work where he was given an N95 mask, which according to Mr E did not fit properly. He requested a PAPR but the hospital did not have any in stock. Mr E then requested to be transferred to a non-COVID-19 unit but the hospital refused saying that he was needed in the critical care unit, which at the time was overwhelmed with COVID-19 patients. Mr E submitted his resignation.
Mr E hired an attorney and sued the hospital claiming that it had violated the Americans with Disabilities Act (ADA) by discriminating against him and not providing job accommodations such as transferring him to another unit. Mr E presented 3 arguments to prove he was disabled:
- Having COVID-19 had substantially limited his senses of taste and smell
- The hospital perceived him as infectious and therefore disabled because of COVID-19
- His chronic kidney disease put him at an elevated risk of complications from further exposure to COVID-19
The ADA contains a nonexhaustive list of “major life activities,” such as seeing, hearing, walking, standing, lifting, eating, caring for oneself, etc. To show he was disabled, Mr E had to allege that his impairment substantially limits a major life activity. In short order, the court disposed of Mr E’s first 2 claims of disability. First, it held that losing his sense of taste and smell was not a disability because it was temporary and did not substantially limit eating (a major life activity).
As for the claim that he was disabled because the hospital viewed him as infectious, the court noted that “perception of infectiousness is not the same as perceived disability.” The court also stated that Mr E’s claim that the hospital considered him infectious was wholly speculative.
Finally, the court looked at Mr E’s third claim and held that the “plaintiff fails to allege that his chronic kidney disease alone or in combination with COVID-19 substantially limits a major life activity.” It noted that Mr E has had the condition since infancy but it had not previously impacted his ability to perform his duties as an intensive care unit nurse. Prior to contracting COVID-19, Mr E had nowhere suggested that his chronic kidney disease substantially limited a major life activity.
The court held that chronic kidney disease, which Mr E claimed put him at higher risk of COVID-19 complications, could not by itself be the basis for a claim since he had not been able to show how it substantially limited a major life activity prior to contracting COVID-19. The court ruled that neither the plaintiff’s prior COVID-19 diagnosis nor his lifelong kidney disease limited his ability to work and, thus, he was not ‘disabled’ under the law. The court dismissed his claims against the hospital.
This appears to be the first case of its kind to address the issue of whether a person’s elevated risk of complications from COVID-19 qualifies as a disability under the ADA. The facts in this case were favorable to the hospital. The plaintiff was young (in his 20s), had fully recovered from COVID-19, and previously had been working in the intensive care unit without raising any issues about his chronic kidney disease.
Whether the decision stands remains to be seen. The court dismissed the case at the end of September 2021 but granted the plaintiff the opportunity to file an amended complaint.
Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.