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Authored By: Morgan Vardaman
Student Materials Editor, American Journal of Trial Advocacy
COVID-19, a novel coronavirus that causes severe acute respiratory syndrome, has swept the world since its recognition in December 2019.[i] With cases climbing to more than seventy-two (72) million in the United States and a death toll of over eight hundred seventy (870) thousand and climbing, it is unlikely that any person in the United States has not been affected by this virus in some way.[ii] While nearly all facets of life have been affected by COVID, the Americans with Disabilities Act (“ADA”) has been impacted to an extreme. Many aspects of the ADA have been altered following the onset of the virus, namely employment.
Discrimination on the basis of disability is prevalent in the United States. [iii] To combat this, Congress passed the Americans with Disabilities Act of 1990.[iv] The Act was created to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”[v] The ADA provides protection for those with disabilities in many facets of life.[vi] However, with the pandemic reaching all-time highs, the ADA must adapt to meeting the needs of those whose abilities to perform different tasks have been diminished due to the virus. A major question regarding COVID as it pertains to the ADA is whether the virus is considered to be a disability. The ADA defines the term “disability” as “a physical or mental impairment that substantially limits one or more major life activities of an individual; a record or such an impairment; or being regarded as having such an impairment,” regardless of whether the individual actually has such impairment.[vii] However, the Act does not protect transitory or minor impairments—ones that have an actual or expected duration of six (6) months or less.[viii] Deciding whether COVID meets the definition of an impairment that substantially limits a major life activity has been analyzed in situations regarding employers covered by the ADA.[ix]
Various aspects of the workplace environment have been adapted following the pandemic’s insurgence. Between mask requirements, vaccine mandates, and physical attendance changes, interpretations of the ADA have vastly expanded. COVID-19 has altered physical attendance requirements by requiring companies to make drastic policy changes to ensure safety of employees.[x] When amending in 2008, the ADA extended the “regarded as” requirement.[xi] “An individual meets the requirement of ‘being regarded as having such an impairment’ if she was fired ‘because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”[xii] Employees who pose a direct threat to the health and safety of others do not meet the qualifications of the ADA.[xiii]
Under the ADA, to be a “qualified individual” for the purposes of disability discrimination, the employee must be an individual who, with or without reasonable accommodation, can perform the essential function of the position.[xiv] Reasonable accommodations are “modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enables an individual with a disability who is qualified to perform the essential functions of that position.”[xv] An issue that has become prevalent in the realm of employment is the idea of working from home. Although the circuits are split regarding the issue, the majority has determined that physical presence at work is an essential function of a large number of jobs.[xvi] Therefore, employers have the right to deny disabled employees to work remotely.[xvii] However, many employers have allowed their workers to complete their job duties at home, which accommodates many disabilities.[xviii] By allowing employees to work from home indefinitely, physical attendance may no longer be considered an essential function of job positions once the pandemic ends.[xix]
Federal EEOC laws do not ban employers from requiring that all employees physically entering the workplace be fully vaccinated against COVID-19 so long as the employers meet the reasonable accommodation requirements of Title VII and the ADA.[xx] Based on the EEOC’s guidance, if an employer requires vaccinations, it must allow for disability and religious exemptions.[xxi] The guidance, which is consistent with the ADA, further asserts that an employee whose disability prevents the employee from safely receiving the vaccine may be exempt from the vaccine mandate.[xxii] If this inability to safely receive the vaccine is present, the employer must “engage in a good-faith interactive process to determine whether the purported disability entitles the employee to an exemption or other accommodation.”[xxiii] Alternative accommodations include working remotely, wearing a mask, or drastically limiting the employee’s contact with the public or other employees.[xxiv] When determining whether exempting an employee from the vaccine requirement would impair workplace safety, the employer may consider things such as the type of workplace, the nature of the employee’s duties, the number of employees who have been fully vaccinated, the number of people, including employees and nonemployees, who enter the workplace, and the number of employees who need a particular accommodation.[xxv]
Although the ADA has been adapted with respect to the workplace, it is far too dated for some employees. In Rice v. Guardian Asset Mgmt., the employee claims that her former employer violated the ADA by denying her request to work from home while waiting to produce a negative COVID-19 test to return from work.[xxvi] Because of this, the employer terminated her employment when the employee failed to provide a negative test.[xxvii] The employee filed suit because her employer denied her a reasonable accommodation, wrongfully discharged her, and retaliated against her.[xxviii] The employee admits that she was not actually disabled, but that she is perceived as being disabled which entitles her to a reasonable accommodation.[xxix] However, the ADA still requires that an actual disability be present and lacks a requirement to provide reasonable accommodations in a situation where an employee is merely regarded as disabled.[xxx] As a response to the current law, the employee asks the court to update the ADA in response to COVD-19.[xxxi] Although the employee poses, “If this be the law, it was certainly pre-COVID-19, and will in all proportionality be changed when the laws across this great land of ours catch up to the horrors of COVID-19 and its effect on American workers,” the court declines the invitation to update the ADA.[xxxii]
Similar laws govern those employees who were in contact with individuals who contracted COVID-19. Although the “regarded as” prong is one way in which an individual can be disabled, association discrimination “consists of discrimination based on one’s association with a person who has a known disability.”[xxxiii] Therefore, those who are treated poorly by their employer because of their contact with an individual with COVD-19 have no coverage under association discrimination.[xxxiv] Because of the COVID-19 pandemic, the way in which employees work has changed as well as the way the term “disability” is interpreted with regard to the ADA.[xxxv] New accommodations such as vaccine mandates and mask policies have been implemented in many jobs to meet the needs of those with disabilities. However, the law has not yet caught up to workers’ demands. As the pandemic continues, it is likely that further changes in the ADA will be made.
[i] Anthony Fauci, M.D., H. Clifford Lane, M.D, & Robert Redfield, M.D., COVID-19—Navigating the Uncharted,; New Eng. J. Med. (2020).
[ii] COVID Data Tracker, Ctr. Disease Control & Prevention (2022).
[iii] 42 U.S.C. § 12101(a)(5).
[iv] Id. at § 12101(b).
[vi] See 42 U.S.C. § 12101-12213. (“[D]iscrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.”).
[vii] 42 U.S.C. § 12102(1).
[viii] Id. at § 12102(3)(B).
[ix] See id. at § 12101(5)(a) (“The term ‘employer’ means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. . .”).
[x] Charles Shafer, How covid-19 may redefine “reasonable accommodation” under the ADA and MHRA, Bench & Bar of Minn., 2 (May/June 2020) [hereinafter Shafer].
[xi] Booth v. GTE Fed. Credit Union, 2021 U.S. Dist. LEXIS 224333, *5 (2021) (citing 42 U.S.C. § 12102(3)(A)) (emphasis omitted).
[xii] Booth, 2021 U.S. Dist. LEXIS at *5.
[xiii] Debbie Kaminer, Discrimination Against Employees Without COVID-19 Antibodies, N.Y. L. J. (2020).
[xiv] See 42 U.S.C. § 12111(8).
[xv] 29 C.F.R. § 1630.2(o)(1)(ii).
[xvi] See Shafer, supra note 9, at 1.
[xviii] Id. at 2.
[xx] What You Should Know About COVID-19 and the ADA the Rehabilitation Act, and Other EEOC Laws, U.S. Equal Emp. Opportunity Comm’n, 34 (2021) [hereinafter What You Should Know].
[xxi] Richard Glovsky and Kimberly Williams, COVID-19 Vaccinations: Thoughts for Employers, 65 Boston Bar J. 25, 25 (2021) [hereinafter Glovsky & Williams].
[xxv] See What You Should Know, supra note 19, at 52.
[xxvi] 2021 U.S. Dist. LEXIS 184868, *1 (N.D. Ala. 2021).
[xxvii] Rice, 2021 U.S. Dist. LEXIS at *1.
[xxix] Id. at *4.
[xxx] Id.; see Billups v. Emerald Coast Utils. Auth., 714 F. App’x 929, n. 4 (11th Cir. 2017).
[xxxii] Id. (emphasis added).
[xxxiii] Champion v. Mannington Mills, Inc., 538 F. Supp. 3d 1344, 1349-50 (M.D. Ga. 2021) (emphasis excluded).
[xxxiv] Champion, 538 F. Supp. 3d at 1350.
[xxxv] Shafter, supra note 10, at 2; Rice, 2021 U.S. Dist. LEXIS at *4.