For more information please call  800.727.2766


Employee With Increased Risk of Contracting COVID Not Protected by ADA

Nicholas Earl worked as a critical care nurse at Good Samaritan Hospital of Suffern (“Hospital”). Earl had chronic kidney disease. In late October 2019, the Hospital had Earl do a “fit test” to determine the proper face mask for him. The Hospital identified the PAPR (Powered Air Purifying Respirator) as one mask that was a good fit for him, but he never received one. Around the beginning of the pandemic, Earl cared for a gravely ill patient with pneumonia. The patient died the next day. The Hospital did not test the patient for COVID, and Earl did not receive an N95 mask to use while caring for him. Earl went to his supervisor and several other supervisory employees to request better protection, letting them know that his parents were high-risk for COVID and that he had chronic kidney disease. He could not find a mask to use other than a surgical one. Earl came down with COVID several days later. His doctor said he should not be in “contact with immunocompromised people,” and his occupational health nurse said he should be using a proper mask.

When Earl returned to work after recovering from COVID, the Hospital fit-tested him again for a mask. He said the mask the Hospital gave him was too small for his face. He requested a PAPR, but the head nurse said they did not have any available. Because he was a critical care nurse, his supervisor refused to assign him to units for non-COVID patients. Earl resigned, stating in his resignation that he was willing to work in a non-COVID unit or with the proper mask. He filed suit, alleging violation of the Americans with Disabilities Act.

A New York federal district court dismissed his case. To qualify as disabled under the ADA, Earl had to show he had an impairment that substantially limited one or more major life activities. He claimed COVID limited his taste and smell, the hospital perceived him as infectious, and his chronic kidney disease elevated his risk of complications from contracting COVID. The court concluded Earl failed to show that any of these claims substantially limited any major life activities. COVID’s impact on his taste and smell was temporary and did not significantly limit his ability to eat. Earl failed to provide any evidence that the Hospital viewed him as infectious. Lastly, Earl failed to show his chronic kidney disease limited a major life activity on a day-to-day basis. Alleging possible severe consequences if he came down with COVID was insufficient to prevail.