Written Testimony of Brian East, Senior Attorney, Disability Rights Texas

April 28, 2021

Introduction

I am an attorney at Disability Rights Texas, which is the designated “protection and advocacy” organization (“P&A”) for the state of Texas. Our mission is to help people with disabilities understand and exercise their rights under the law, ensuring their full and equal participation in society. One of our stated goals is to ensure that anti-discrimination laws “are enforced so that individuals with disabilities are not discriminated against while at work or while trying to access employment, and workers with disabilities are paid fair and legal wages.”

The COVID-19 pandemic has had a huge impact on most workers, and has resulted in millions of American workers being laid off. The national unemployment rate increased from 3.5 percent in February 2020 to 14.7 percent in April 2020, the highest rate since the Great Depression. Gina Livermore & Jody Schimmel Hyde, Workers with Disabilities Face Unique Challenges in Weathering the COVID-19 Pandemic (Mathematica May 28, 2020).[1]

Even before the pandemic, the employment rate of people with disabilities was “persistently less than half that of their nondisabled peers, and their unemployment rate is more than twice as high.” In the spring of 2020, workers with disabilities “lost nearly one million jobs, representing a 20‑percent decline compared with the 14-percent decline experienced by workers without disabilities.” Id.

Individuals with disabilities are therefore among those disproportionately impacted by the COVID-19 pandemic. There are various causes, but some of the job losses are because of disability discrimination. As a result, vigorous enforcement of anti-discrimination statutes like the ADA and the Rehabilitation Act is necessary to mitigate the pandemic’s impact on people with disabilities.

The COVID-19 pandemic has been a substantial focus of our own work over the last year. During the first nine months of the pandemic, for example, our agency devoted more than 17,000 hours of staff time to COVID-19 rights issues, developed 26 new informational resources related specifically to COVID-19 rights, and advised or represented scores of individuals with disabilities complaining of workplace discrimination.

My testimony will focus on the kinds of employment discrimination we have observed, both from the reports of our own clients (Part I), and from litigation we have surveyed from around the country (Part II). The failure to provide pandemic-related reasonable accommodations to employees and applicants with disabilities was the most frequent problem reported, and resistance to teleworking was particularly widespread. But employers also denied various other types of accommodations, including periods of leave, scheduling changes, and job restructuring. Individuals with disabilities complained of other kinds of disability discrimination as well, including associational discrimination.

This testimony also surveys some of the Commission’s most visible responses to the COVID-19 pandemic. Those actions were very timely, and extremely helpful. The EEOC’s pandemic guidance documents stand out in those respects. But even those had room for improvement, as I point out in Part III.

My hope is that this testimony, and that of others, will help inform the agency on possible future efforts and actions it might take to mitigate COVID-19’s implications for workers with disabilities.     

I. Our Own Client Stories

A. Teleworking

We reviewed several dozen of our own pandemic-related employment intakes from the last year. Over 60% involved an employer rejecting a telework accommodation, mostly for employees with a risk-factor disability, but in some cases needed by individuals who had a mental-health condition that was exacerbated by the pandemic.

These telework cases reflected a broad range of jobs. The most common setting was in the school context, both public and private, including teachers, coaches, administrators, counselors, instructional aides, and support personnel. We also had several intakes involving college professors and support personnel. But many other parts of the economy were also represented, including real-property management, real estate evaluation, state and municipal employees, mental-health and addiction counselors, social workers, call-center employees, technical writers, etc.

We heard from individuals with risk-factor disabilities whose jobs did not require interaction with others, but who were assigned new tasks or new work locations during the pandemic that increased their exposure to COVID-19. Others were permitted partial telework, but were refused a full-time remote assignment.

We also learned of employers refusing a telework accommodation because the individual was on an unrelated performance-improvement plan. Conditioning an accommodation in this way is generally inappropriate, but it was all the more problematic here because of the importance of remote working as a reasonable accommodation during the pandemic.

We were also told of an employer that denied telework as a reasonable accommodation, even when the entire company was teleworking because of the pandemic. The employer argued that 100% in-person attendance was an essential function of the job, so it would not accommodate the employee because at some point the COVID-19 restrictions would be lifted. This employee was fired.

Some employers demanded a specific date by which the employee could return to working in person. This information may now be available for many employees, as the dates of vaccination become known or likely. But early in the pandemic, doctors were often unable to provide this information, resulting in employers rejecting telework. Some employers have argued that the lack of a specific return-to-work date makes telework unreasonable. They bolster this argument by relying on cases involving “indefinite leave,” but telework cases are fundamentally different from those, in no small part because with telework, the employee continues to work throughout. We often heard about employers that refused to identify the essential functions they believed could not be performed remotely, preventing a meaningful “interactive process” designed to identify reasonable accommodations. Other employers rejected the doctor’s letter supporting an accommodation request, but for unspecified reasons, again preventing a meaningful dialogue.

B. Other Accommodation Issues

We saw, and continue to see, other accommodation issues besides teleworking. Employees complained, for example, about the lack of safety protocols or social-distancing at work, sometimes in spite of appropriate written policies or governmental orders on point.

Some problems related to the use of masks, including for individuals whose psychiatric impairments were triggered by wearing a mask; individuals on the autism spectrum who had anxiety flare-ups; and individuals who needed others to wear masks with a clear-plastic window to facilitate lip-reading and interpreting facial expressions.

With regard to leave, the most common problem we saw involved employers forcing individuals to take unpaid or reduced-pay leave (e.g., short-term disability), even though another accommodation—most commonly teleworking but also job restructuring—would have allowed the individual to work at full pay. But other leave issues were seen as well, including the refusal to provide intermittent leave, and the refusal to extend a period of leave when a scheduled surgery was delayed by a local surge in COVID-19 cases.

One employee was permitted to telework, but when a flare-up of psychiatric conditions required new medication that caused grogginess, the employer ignored requests for a more flexible schedule.  

Some employees with risk-factor disabilities were refused job restructuring when they asked to avoid performing a marginal function that placed them at greater risk of exposure to COVID-19, even though others were available to perform the tasks.

We heard about schools that, as part of safety protocols, had teachers moving between classrooms instead of the students. But no arrangements were made for individual who used bulky technology as a result of their disability. One individual with low vision was forced to move his CCTV equipment from room to room.

We have been advised of other accommodation issue that have arisen because of the move to teleworking, including the lack of interpreters for meetings or interviews that had moved to a remote platform, and problems with network setting resulting in individuals with communication disabilities being forced to work in person while others without such disabilities work remotely. One employee was forced to quarantine in a hotel, and then refused the ability to telework for that reason.

C. “Fear of COVID-19”

One frequent refrain we heard from employers is that “fear of COVID-19” is not a disability. Regardless of the truth of that statement, employers often applied the concept inappropriately. If an individual has no disability or impairment at all, and seeks an accommodation because they have a fear of getting the virus, the ADA may not apply. But an individual who seeks to avoid the virus because of a recognized risk-factor disability, e.g. type 2 diabetes, is not arguing that “fear of COVID-19” is a disability. They are arguing that diabetes is a disability, which the EEOC has recognized is virtually always the case.[2]                    

D. Regarded-As Disability

Another common refrain we heard related to employers who refused to allow an employee to take time off because the individual had been exposed to the virus, because the employer mistakenly believed that the individual had COVID-19, or because the employer mistakenly believed that a person with a past infection was still contagious. In our view, each of those presents a case of perceived disability. Employers argued that the first scenario did not indicate a perceived impairment because they did not actually know if the individual had COVID-19. But as we have seen in other cases, the ADA Amendment Act’s definition of a “perceived impairment” is broad enough “to encompass situations where an employer assumes an employee has an impairment or disability.”[3]

E. Discriminatory RIFs

We saw, and heard about, individuals with disabilities who lost their jobs during a pandemic-related reduction in force. In some cases, the employer misstated the lack of available work; in other cases the employer stated that the individual was selected because of the physical manifestations of a disability; and in still other cases the employee reported that they were selected because they had requested accommodations. One lawyer wrote us that “when the layoffs started relating to the pandemic, it seemed like almost every call we got was from someone who had a medical condition or injury. It really felt like employers were using the pandemic as an excuse to get rid of individuals with disabilities.”

F. Retaliation

We heard of retaliation, bullying, and harassment for requesting a pandemic-related accommodation, which was often a request to work remotely. But we were also told of retaliation in response to raising questions about safety protocols in the workplace. In some cases the employer also contested the application for unemployment benefits. One restaurant worker was aware of individuals coming to work who had tested positive for the COVID-19. She was given permission to tell staff of the fact, and then fired when she used the scheduling software to do so.

II. Representative Litigation From Around the Country

A. Overview

In order to determine if our own experience was unusual or atypical, we reviewed the reported opinions we could find involving pandemic-related ADA or Rehabilitation Act claims. We also reviewed complaints from similar lawsuits, even if those cases have not yet resulted in a reported opinion. We found that these cases, from across the country, were striking similar to the stories from our own clients. The nationwide results are summarized here, but described in more detail in Part II.B below.

Consistent with our own experience, many of the cases involve individuals who were denied a telework accommodation. Often, all (or substantially all) of the employees were instructed to work remotely for a time, but a telework accommodation was later refused when the employer “re-opened,” regardless of how successful the plaintiff’s remote work had been. Typically the need for telework was based on an underlying disability that was an identified or probable risk factor for a serious case of COVID-19. But sometimes the need was based on flare-ups of a mental impairment, caused either by the pandemic or by the employer’s inadequate response to the pandemic.

Other accommodations were refused, such as alternate schedules to minimize interactions, and alternate locations or assignment to minimize exposure risk.

Some cases allege a denial of leave as an accommodation; others describe an employer holding such leave against the employee; and still others complain about employers forcing individuals onto leave (often unpaid), even though teleworking or some other accommodation would have allowed the employees to continue working, thus would have preserved income during the pandemic.

We saw cases alleging discrimination against employees for having COVID-19, and/or for complaining about the lack of safety protocols. There were also cases involving discrimination against individuals who had family members with risk-factor disabilities, as well as cases in which individuals were refused accommodations for their family members, highlighting a gap in the ADA’s (or Rehabilitation Act’s) legal protections.

Some cases present “intersectional” discrimination, e.g., workplaces in which white employees could telework, but black employees doing similar jobs could not.  

Finally, there are cases in which the employer claimed that the pandemic was necessitating a reduction in force, but there was either contrary evidence, or the layoff selection process appeared to be biased.

B. Reported opinions

In one of the few pandemic-related ADA employment cases with a reported opinion, Peeples v. Clinical Support Options, Inc., 487 F. Supp. 3d 56 (D. Mass. 2020), the court granted a preliminary injunction to allow the plaintiff—an assistant manager for a mental-health provider—to continue to telework. The plaintiff had a risk-factor disability (asthma), and had tried to return when the office reopened, but he found the safety protocols spotty at best, and social-distancing was difficult. The lawsuit was filed after the employer was perceived to threaten termination if the plaintiff continued working remotely. It appears that the injunction was extended by agreement, and the case then settled.

In Payne v. Woods Services, Inc., No. CV 20-4651, 2021 WL 603725 (E.D. Pa. Feb. 16, 2021), the plaintiff had COVID-19, was advised by a healthcare provider to quarantine for 14 days, received a demand from the employer to return after six days, and was fired when he didn’t. The ADA claims were dismissed because the plaintiff did not sufficiently allege a disability, and his ADA retaliation claims were also dismissed because he did not request an accommodation, just leave under the FMLA.

In Parker v. Cenlar FSB, No. CV 20-02175, 2021 WL 22828 (E.D. Pa. Jan. 4, 2021), the plaintiff argued that the employer regarded him as having a disability because it believed that he may have been exposed to COVID-19. The claim failed because the court found that, notwithstanding whether COVID-19 is a disability under the ADA, possible exposure to COVID-19 is not “a physical or mental impairment that substantially limits one or more major life activities.”

C. Sample allegations in cases without reported decisions

Some of the allegations we saw in ADA or Rehabilitation Act complaints filed in lawsuit around the country are described below.

• The wife of car salesman had a risk-factor disability, but the employer prohibited wearing of masks and refused other safety precautions. The complaint alleges associational discrimination and retaliation. (MD)

• The complaint alleged a failure to implement safety protocols like masks, distancing, screens, and sanitizing, which was needed because of the plaintiff’s diabetes and hypertension. (AL)

• Joint employers fired employee for asking about safety protocols because of his wife with a risk-factor disability. (KS)

• The employer kept assigning mental-health tech to COVID floors despite other available assignment and requests for accommodation required because of anxiety. (AL)

• The plaintiff brought FMLA, ADA, and FFCRA claims for employer’s refusal to provide job protection after he and his immediate family were infected with COVID-19. He was also demoted on his return to work. (NY)

• The plaintiff had a serious case of COVID-19, in addition to cancer. The employer denied a request for part-time telework, or leave, while he was recovering. (NY)

• The employer fired the plaintiff, allegedly because of association with high-risk wife, and for speaking out about safety issues. (PA)

• The plaintiff alleged a failure to accommodate COPD and anxiety. (KY)

• The employer retaliated against the plaintiff for complaints about not following governmental safety orders, for seeking leave because of risk-factor disability, and because the plaintiff sought leave due to the risk-factor disabilities of family members. (NJ)

• The employer failed to make reasonable accommodation—i.e., short additional leave, or continued teleworking—or to engage in the interactive process. (SC)

• The plaintiff alleged disability and age discrimination because he was approved for COVID-19 leave, but was not told that absence “points” would accrue, and was ultimately fired upon his return to work. (OH)

• Although a high performer, the plaintiff was selected for a RIF because of disability and sex, and was not offered another position as was done for others. (NY)

• The plaintiff sought teleworking because the pandemic exacerbated her mental-health impairment. Others in same positions were permitted to telework, but not the plaintiff; instead, the employer insisted she come into the workplace even for remote meetings, failed to engage in any interactive process, and forced her onto unpaid FMLA leave. (FL)

• A nurse’s immunological disability made her much more vulnerable to a high-risk COVID-19 infection, but the employer refused to test patients, refused to give an N-95 mask, and refused to accept doctor’s letter in support of accommodations, for unspecified reasons. Instead, the employer placed her on unpaid leave and refused to allow her to work in her unit, or anywhere else at the hospital. (KY)

• Despite co-workers testing positive for COVID-19, and despite the fact that the plaintiff was granted telework because of a lung condition, her supervisor insisted she return for an in-person training, and pressured her to take leave instead. When she did not, they effectively took away her telework accommodation and forced her to use up her leave, then put on leave without pay, despite that fact that the employer had other paid leave plans available. (NY)

• A supervisor tested positive but failed to quarantine or wear a mask. The plaintiff then tested positive, became seriously ill, and was forced to quarantine for 34 days, but still worked, and did not receive any write-ups or disciplinary actions. The employer hired a younger and less-experienced temporary replacement, and then fired the Plaintiff the day after her return for pretextual reasons. (OH)

• An HR manager with a high-risk pregnancy and gestational diabetes was particularly susceptible to COVID-19, which presented a serious risk to her and her unborn child. When there was an outbreak of COVID-19 at work, she began teleworking. Despite doctors’ letters in support, the employer refused to allow her to continue to telework, even though she had done it successfully. Although she asked for a temporary period of telework until she was eligible for FMLA leave or until the birth of her child, she was told that if she could not come in, she would be fired, despite admitting that the decision was not performance-related. She was terminated. (WI)

• While everyone was teleworking, the plaintiff was diagnosed with cardiomyopathy, and sought to continue to telework after the workplace partially reopened. She was initially approved, but when she sought an extension because of a new rise in COVID-19 cases, the employer refused, despite an outstanding performance review and knowing that a doctor’s letter was in process. The supervisor stated that the employer was ‘not a work-from-home company.’ She was fired. (FL)

• The plaintiff with a risk-factor disability began working remotely, and later asked to continue doing so, but all employees were ordered to return. HR instructed that the plaintiff send a doctor’s letter. The plaintiff indicated that she had an appointment with the specialist in a couple of weeks. But the day after the letter was turned in, the employer fired the plaintiff, allegedly because of a RIF, it then hired a replacement. (GA)

• The plaintiff’s doctor diagnosed her with probable COVID-19, but because testing was unavailable, doctor ordered self-quarantining for seven days. The employer placed her on leave and locked her out of all work-related programs. On return visit, the doctor said it was most likely COVID-19, and ordered another 14-day self-quarantine. The same day the plaintiff asked for FMLA leave, but received no response and no communication. When the plaintiff returned at the end of the 14 days, she was still locked out of the programs. Her supervisor berated her on the phone, supposedly for poor performance, and she was fired. She was the only Latinx in her position and/or a similar position, and the white employees were treated more favorably. (KY)

• Plaintiff tested positive for COVID-19, and followed CDC guidance in quarantining. A second test after about ten days was also positive, so she quarantined another ten days or so. The third test was negative and the plaintiff returned. The supervisor demanded a copy of the negative test, which was given, but in response to the plaintiff’s complaint, HR confirmed with the supervisor that demanding the test results was inappropriate. Thereafter, the supervisor began harassment, gave a write-up for something that was standard practice, then gave a second write-up for trying to help another department. The plaintiff was then fired. (FL)

• After an employee tested positive for COVID-19, the business closed and was disinfected. The employees were told to return, but there was no protective equipment. The plaintiff’s doctor advised telework, and the following day, the employee’s son’s doctor advised avoiding exposing the child. The plaintiff brought in both doctor’s letters, and asked to work in-person from four a.m. to noon to minimize exposure, and then telework the rest of day. Instead, he was put on two weeks unpaid leave per the company’s furlough program. At the end of it, the plaintiff still sought partial telework, and was asked to resign. He was also denied FMLA and FFCRA leave. He was fired for the two weeks furlough leave, although it had been approved, and was consistent with federal law. The employer then hired a younger replacement. (TX)

• Plaintiff worked as a nurse but she, her daughter, and her husband all had risk factors. Younger and white employees were furloughed or reassigned but the plaintiff was forced to work on the COVID units, or not given shifts at all. They began cancelling her shifts and not sending her to other units so that she would not be able to achieve her hour requirements for the PRN position. She was denied leave without pay and not given FMLA paperwork. She was fired and the company said it was because it did not believe she could fulfill her PRN hours. (AL)

• The plaintiff with cancer was fired for “lack of work” due to the pandemic, but that was a pretext. She was refused accommodations and the interactive process, and the company shunned and excluded her. (NY)

• The plaintiff had a heart transplant and other cardiac surgery, which was a motivating factor in the decision to terminate him, not to reassign him to another position, and to not hire Plaintiff for any of the positions to which he applied. The employer denied the plaintiff’s request to telework, without properly engaging in the interactive process. (KS)

• A school required all staff to return, even though it was in a hot spot, other teammates tested positive, and there were few safety measures—the PPE was limited, air circulation and ventilation was poor, and faculty and students used common hallways. The immuno-compromised plaintiff requested to continue teleworking, and she (and the students) had done a good job while she worked remotely. The school denied it, saying that in-person instruction was required to access instructional materials and to work with peers/colleagues. But the plaintiff claimed that she had full access to materials, and all colleagues interacted remotely only. She told the employer that she would be able to get a return-to-work date at her next appointment (in 3 months), but gave a release and invited direct contact with her doctor. Younger and white teachers were permitted to telework. She was terminated, and replaced by a teacher, who themselves worked remotely, aided by an in-person assistant. (IL)

• A college required its employees to return, despite contrary government orders. The plaintiff had to interact with people who were not masking or social-distancing. She explained her risk factor and asked for safety steps, including a Plexiglas barrier, a mask mandate for employees, a social-distancing reminder, and hand sanitizer for employees and customers. These were all ignored or refused. When she pointed out that black individuals were disproportionately impacted, her supervisor got mad, and told her that if she did not like how things were going or did not feel comfortable being at work due to the virus, she could either use her personal leave, take annual leave, or quit. She was later told that she was a great employee, but was being terminated because of a RIF. She was told that two positions were to be merged, and the supervisor did not know if she was qualified for the new position. In fact, she was qualified, but was not allowed to apply for it or other jobs, and the employer continued to hire new staff and give raises. (GA)

III.  EEOC Activities and Performance

A. Pandemic-Related Guidance

For many of us, the EEOC’s most visible response was its pandemic-related guidance. The most valuable of these were:

• What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.[4] To us, this was the most valuable document. It was originally published on or about March 17, 2020, and was updated many times, most recently on December 16, 2020. Among other things, the original version focused on information relating to screening employees for COVID-19, and moving to a remote workplace. Later iterations focused more on accommodations and vaccinations.

• Pandemic Preparedness in the Workplace and the Americans With Disabilities Act.[5] This was originally written during the H1N1 outbreak, but was updated on or about March 21, 2020 to address examples and information regarding COVID-19, with the new information in bold.

• A pre-recorded webinar addressing questions arising under any of the Federal Equal Employment Opportunity Laws and the COVID-19 pandemic. The EEOC had publicly solicited questions to be addressed. The video, dated on or about March 27, 2020, was made available on YouTube,[6] and on a video player on the Commission’s coronavirus page.[7] A written transcript of the webinar was also made available.[8]

These documents were issued early in the pandemic, and they dealt with many of the real-world situations we faced and the questions we had. They exemplify the importance of EEOC guidance documents, and also the importance of moving quickly to issue them when the situation demands. Some of the Commission’s recent policies or practice do not seem to recognize the importance of agency guidance, or appear designed to undercut its persuasive force. Hopefully that will change.

These guidance documents were (and are) linked to the EEOC’s coronavirus page, which for most (but not all) of the time was prominently linked to the Commission’s home page. One question we have is the full scope of alternate formats for this information. The video (which also had captioning) and the video transcript were good examples of such formats, but information in other languages, including American Sign Language, is also important.

Our staff gave many presentations based on the above-described guidance from the EEOC. We also used it as a check on the earlier Q&A handout we had included on our own website.[9] We have read that the EEOC likewise “prioritized COVID-19-related outreach,”[10] although we are not familiar with the details of that effort and so cannot comment on it except to say that such a prioritization was appropriate.

It is also worth pointing out the value of giving clear direction to employers and employees. One sample of that is in Example A of the Pandemic Preparedness document, which describes employer policies around medical exams that are “ADA-compliant.” The message is clear—this is lawful. Example B describes an employer decision that is “discriminatory” because the employee “does not pose a ‘direct threat’ to himself or others.” Another clear message—this would be unlawful. Similarly, Part II.A.1 and Example E describe specific facts, some of which the guidance points out would violate the ADA’s restrictions on disability-related inquiries, and others that the guidance states are permissible. These kinds of “firm” examples help stakeholders know where the ADA draws the line. Although there is a place for “best practice” information, the most valuable guidance documents use clear examples to educate employers and employees on the difference between lawful and unlawful behavior.   

In sum, the EEOC’s pandemic guidance was very helpful in many ways. But we do have two substantive criticisms. First, as many businesses were moving towards reopening—sometimes in a location, on dates, or in ways that were contrary to the advice of public-health experts—the EEOC became more focused on the question of continued telework as a reasonable accommodation. Unfortunately, the wording and organization of the EEOC’s response on this topic could be read to suggest that continued telework is rarely required.[11] In our experience, many stakeholders did read it that way. Too many courts and employers already think that working remotely is rarely reasonable, which is simply untrue. The EEOC needs to be much more robust in its support of telework—in its guidance, enforcement strategy, and in every other way—and it must be careful not to reinforce negative stereotypes and ignorance about it.  

Expanding opportunities for working remotely can have a huge impact on increasing employment opportunities for workers with disabilities. “If, because of the experience during the pandemic, more businesses offer flexible hours and telework options in the future, this could create more job opportunities for people with disabilities who have impairments that make it difficult to work outside the home or who require more flexibility in their work schedules.” Livermore & Hyde, supra. Squandering this opportunity will have the opposite effect.

Our second criticism is the somewhat confusing way the EEOC addressed the “direct threat” defense. EEOC guidance states that “an individual with the [COVID-19] virus will pose a direct threat to the health of others.”[12] We think that it would be more accurate to say that the threat level may be sufficient, but whether an individual poses a direct threat includes various other factors, including the duration of the risk, and whether a reasonable accommodation exists that would reduce the threat to an acceptable level.[13] Such accommodations are often available.

These guidance documents also have an obvious omission—there has been no attempt to answer the question of whether COVID-19 itself is a disability. We anticipated that most cases of disability discrimination related to the pandemic would involve “underlying” disabilities, and in particular those that the CDC, WHO, or healthcare providers identified as creating a heightened risk of a serious case of COVID-19. This prediction appears to have been accurate, based on our own intakes and on the litigation that we are aware of to date. But as indicated elsewhere in this testimony, we have also seen cases in which an individual has been fired because of testing positive for COVID-19, or because the employer believed the individual to be infected.

It seems relatively straightforward to say that a more serious case of COVID-19 satisfies the broad definition of disability in the ADA Amendments Act of 2008. But even an outwardly mild case may meet the definition of an “actual” disability. This is partly due to the hidden, but now better-recognized, effects of the disease. It is further supported by the recognition that a limitation is substantial if it would be “dangerous to the public health” or “carries economic and legal consequences.”[14] The COVID-19 virus has also had a tremendous impact on the major life activity of interacting with others. And its actions at a biological level affect functions of the immune system and of normal cell growth. Moreover, COVID-19 should satisfy the definition of a “regarded as” disability because it is an impairment that, even if transitory in a particular case, cannot be judged to be “minor.”

B. Administrative Exhaustion Issues

Besides its helpful guidance, the Commission also “froze” the processing of federal-sector EEO complaints. This came in the form of OFO instructions (dated April 6, 2020). In addition, the Commission apparently halted the issuance of charge-closure documents and right-to-sue notices for a time, although this seemed to us less-clearly explained to the public. These steps effectively extended the limitations period for administrative exhaustion and litigation, and overall this was beneficial in our view. Both of these process changes apparently ended in the summer of 2020.

We did hear that the problems communicating with EEOC intake and investigative staff—an issue we have heard about often over the years—were made worse by the pandemic, especially for individuals who have barriers to using the online portal.

Another thing that seems surprising by its absence is the lack of litigation by the Commission on pandemic-related ADA claims. We do not know if this is related to burdensome internal approval processes, or if there are other reasons for it. But it appears to be a big gap in enforcement. That is especially true in light of the fact that the administrative-exhaustion requirements often take a long time, and often leave the charging party with little to show for the delay. And more than one EEOC staffer informed us that the Commission had no plan or process for expediting pandemic cases, despite its immediate and hugely negative impact on the American workforce.

Relatedly, although the EEOC supports the view that it has the power to issue “early” right-to-sue notices upon request (i.e., before the expiration of 180 days), not every court accepts that. Private litigants who are facing job loss because an easy accommodation is reflexively denied are then placed in the position of seeking preliminary injunctive relief in court before exhaustion is complete. There is case law supporting the ability to do that—and further support from the Commission would be welcome—but that is an additional legal hurdle that will likely be raised, and must be overcome.

IV. RECOMMENDATIONS

We recommend that the EEOC:

1. Use the experience of the Commission’s pandemic guidance as a model for future enforcement guidance, especially when the workforce is facing an emergency situation.
2. Ensure that guidance documents are available in various formats and languages, including ASL.
3. Use “firm” language in its guidance documents, to let stakeholders know what is lawful or protected behavior, and what is not.
4. Increase the Commission’s support for, and enforcement activities around, telework as a reasonable accommodation.
5. Consider targeted guidance or other enforcement activities that:

   (a) Deal with those sectors of the economy generating the most discrimination complaints, e.g., public education;

   (b) Attack the problem of forced leave;

   (c) Better incorporate or sync up with safety advice from the CDC or OSHA;

   (d) Best protect workers from bringing COVID-19 “home” to others with risk-factor disabilities.  

6. Issue guidance explaining why COVID-19 is a disability under all three prongs of the disability definition in the ADA Amendments Act of 2008.
7. Bring more litigation in appropriate cases that involve pandemic-related disability discrimination.

 

[1] Available online at https://www.mathematica.org/commentary/workers-with-disabilities-face-unique-challenges-in-weathering-the-covid-19-pandemic.

[2] 29 C.F.R. § 1630.2(j)(3)(ii) and (iii).

[3] Equal Emp. Opportunity Comm’n v. BNSF Ry. Co., 902 F.3d 916, 924 (9th Cir. 2018) (“In requesting an MRI because of Holt’s prior back issues and conditioning his job offer on the completion of the MRI at his own cost, BNSF assumed that Holt had a ‘back condition’ that disqualified him from the job unless Holt could disprove that proposition.”), cert. denied, 140 S. Ct. 494 (2019).

[4] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

[5] https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act.

[6] https://www.youtube.com/watch?v=X50G7l41NKg.

[7] https://www.eeoc.gov/coronavirus.

[8] https://www.eeoc.gov/transcript-march-27-2020-outreach-webinar.

[9] https://www.disabilityrightstx.org/en/handout/disability-discrimination-at-work-now-that-covid-19-is-here/.

[10] https://www.eeoc.gov/newsroom/eeoc-issues-fiscal-year-2020-annual-performance-report.

[11] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Question D.15 (Sept. 8, 2020):

Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?

No. . . .”

[12] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Question A.6 (Apr. 23, 2020; updated Sept. 8, 2020).

[13] 29 C.F.R. § 1630.2(r).

[14] Bragdon v. Abbott, 524 U.S. 624, 641 (1998).