Small Law Firms

Should COVID-19 Status Be A Protected Classification?

People who have recovered from COVID-19 already face significant disadvantages, even if they have fully recuperated from the virus.

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The ongoing COVID-19 pandemic has impacted every part of daily life, and most of us have socially distanced and worked from home to reduce the spread of the virus. As detailed on this website in numerous prior articles, many legal issues have also cropped up because of COVID-19, and lawsuits have been filed due to closures related to the pandemic and executive orders designed to slow its spread. Some employers and government agencies have also taken action against individuals based on their COVID-19 status, and additional measures will likely affect people depending on whether they have recovered from COVID-19. The situation has made me wonder whether COVID-19 status should be a protected classification so that government agencies, employers, and others cannot arbitrarily take action against someone because of their experience with the virus.

I recently became more aware of the misunderstandings and stigmas individuals may face because they have recovered from COVID-19. Indeed, I discovered a few weeks ago that I have COVID-19 antibodies, which were presumably the result of an illness I experienced in March. I do not want to spend too much time discussing my own experience with COVID-19, since my symptoms were relatively mild, and David Lat (who is a much better writer than I am) has already written compellingly about his experience with COVID-19 on these pages. However, I have been frustrated with some misconceptions about individuals who have recovered from COVID-19. People seem to hold erroneous beliefs about how long individuals may be contagious after they recover, whether there is always permanent harm from COVID-19, and other issues. I confess that before I knew I had COVID-19 antibodies, I was much less informed about the virus.

In any case, people who have recovered from COVID-19 already face significant disadvantages, even if they have fully recuperated from the virus. For instance, the military announced several weeks ago that recovering from COVID-19 would be a permanently disqualifying condition for entrance into the armed services. Although the military later clarified that such a disqualification would only apply to individuals hospitalized because of COVID-19, many people who have recovered from the virus will face obstacles to joining the military due to these restrictions.

Presumably, recruits could apply for a medical waiver, but as someone who has gone through the military medical waiver process twice (once successfully and once unsuccessfully), I can say firsthand how frustrating, arbitrary, and time-consuming this process can be. Furthermore, and I am not a physician (though if I can kvell, my triplet brother is a pulmonologist and critical care physician who has given me useful info about the virus), but many people who recover from COVID-19, even if they are hospitalized, will have no permanent health issues. Of course, some people with permanent issues because of COVID-19 may not be healthy enough for military service, but this example shows how just the status of having COVID-19 can impact your opportunities. In addition, if the military is restricting employment because of an applicant’s COVID-19 status, it is possible that law enforcement agencies and other government entities may make it difficult for applicants to secure jobs if they ever had COVID-19.

In addition, people who never had COVID-19 can also face disadvantages. The jury is still out about whether recovering from COVID-19 confers immunity, and how long-term and durable this immunity may be. However, many are operating under the assumption that recovering from COVID-19 confers some kind of immunity, and that individuals with antibodies should be allowed to leave quarantine first. In fact, there are some talks of governments issuing immunity certificates or immunity passports to people with COVID-19 antibodies so that they can more easily return to work, travel internationally, and perform other activities that are currently restricted. Indeed, some commentators have suggested that people with COVID-19 antibodies should be given preference for certain frontline jobs because they may have some level of immunity to the virus.

However, it is unfair to disadvantage people because they have never had COVID-19. Such individuals are likely following social distancing guidelines and are making sacrifices in order to flatten the curve. Furthermore, in a worst-case scenario, conferring benefits to people who have COVID-19 antibodies may incentivize individuals to be exposed to COVID-19! Although this might sound unrealistic, it is definitely a possibility that should be considered.

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I am not an expert on discrimination laws, but it seems possible that existing laws relating to disabilities may apply to COVID-19 status, depending on the situation and how severe a person experiences symptoms and disabilities relating to COVID-19. In addition, as more people experience COVID-19, and as additional information about the virus becomes available, there may be fewer restrictions based on someone’s COVID-19 status.

All told, it is clear that businesses and governments are considering limitations and benefits depending on a person’s COVID-19 status. Such measures may be reasonable in some situations and unfair or capricious in others. In any case, it is important to contemplate how such measures may run afoul of existing protections, and new safeguards may be considered so people are not treated arbitrarily based on whether they have recovered from COVID-19.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at [email protected].

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