This story was co-published with HuffPost.
When coronavirus cases began to spike in Connecticut in March, A.J. was struggling to control her diabetes, a disease that increases the risk of severe illness or death from COVID-19.
A.J.’s colleagues were working from home. But when she asked her employer if she could do the same, she was told she was needed in the office, where her job in human resources included sorting mail and filing. To stay home, A.J. used the nearly three weeks of vacation time she had accumulated.
“I figured I would rather be alive than dead with vacation,” said A.J., who asked to be identified by her initials out of fear concern of retaliation from her employer. Ever since she asked to work remotely, she said, her performance reviews have worsened. Documents she showed the Center for Public Integrity reflect the downgrade: Several years of performance reviews show she exceeded expectations in almost every aspect of her job, but in June she was told her “attitude” had hurt her performance, and she was rated as only meeting expectations.
A.J. has not yet filed a complaint against her employer, but as workplaces and public facilities reopen, disability lawyers say they are seeing a sharp increase in the number of disabled workers who are asking about their rights to demand accommodations that reduce their risk of contracting the virus.
The cases are likely to multiply. At least 27 million workers under the age of 65 suffer from medical conditions — including heart disease, diabetes and chronic kidney disease — that put them at increased risk of dying from COVID-19, according to a study by the Kaiser Family Foundation. Such conditions tend to be more prevalent among people of color.
As these people head back to work, employers may be required by the Americans with Disabilities Act (ADA) to make reasonable accommodations to protect them in workplaces or allow them to work from home. The outcome of these cases could determine if high-risk workers such as A.J. will have to choose between their health and their jobs.
Brian East, a senior attorney for Disability Rights Texas, which provides legal assistance for people with disabilities in the state, said he hears from workers that many employers aren’t providing protections or allowing employees to work from home. The refusals, he said, “will often lead to legal violations, and it will unnecessarily risk the health of many employees with disabilities that are risk factors for COVID-19.”
An estimated 83 percent of people under the age of 65 who have died from the coronavirus had an underlying medical condition, according to a report on COVID-19 deaths between February and May published by the Centers for Disease Control and Prevention. Experts warn that many people who are at high risk will continue to go to unsafe workplaces because they need a job.
The ADA, enacted 30 years ago in July, requires workplaces with more than 15 people to make reasonable arrangements that will allow workers with disabilities to do their jobs. The law is considered one of the most important pieces of social rights legislation since the Civil Rights Act of 1964, meant to ensure that those with disabilities can participate in jobs and public life.
Employment lawyers call the current situation unprecedented. But courts have not yet weighed in on the definition of disability or what’s considered a reasonable accommodation during the pandemic.
Disability advocates and employment lawyers warn that without adequate protections, people with serious health issues could be disproportionately forced out of the labor market.
“An interpretation [of the law] that is … too narrow may lead to a creation of a ‘second class’ of workers who may face challenges maintaining employment unless it is primarily telework,” said Edgar Ndjatou, the director of Workplace Fairness, an employee rights organization based in Washington, D.C.
Experts worry that people who are at higher risk for COVID-19 and may be unemployed will choose not to reenter the workforce rather than risk infection. A survey conducted by the American Diabetes Association found that people with diabetes were more likely to be unemployed or to have lost work during the pandemic. Those who do go into work face risks: 3 out of 10 of employees with diabetes work in places where masks are not required, the association found.
Sarah Fech-Baughman, the director of litigation at the American Diabetes Association, said the organization has been “flooded” with requests from people worried about returning to work.
“People are very concerned and they want information about their legal rights,” Fech-Baughman said.
Who’s protected under the ADA?
There is no official list of what conditions qualify as a disability under the ADA, and the Equal Employment Opportunity Commission, which enforces the ADA, has not ruled on whether COVID-19 counts as a disability under the law.
But East, of Disability Rights Texas, said he was confident that heart disease, diabetes and asthma would qualify if a doctor said the patient was at significant risk. People with obesity, which affects more than 1 in 4 workers, should also receive increased protections, East said. But he warned that some courts have been reluctant to classify it as a disability.
During the pandemic, workers have asked employers for accommodations, such as teleworking from home. Employees who cannot work remotely may request protective measures, such as masks and gloves, or modifications to their work schedules or locations so they are less frequently in direct contact with people. In some cases, workers may request short-term leaves of absence. Some lawyers said the ADA may give workers at higher risk the right to ask employers to institute safety standards, such as mandating everyone they regularly interact with in the workplace wear a mask.
But Kathleen Anderson, a lawyer with Barnes and Thornburg, who provides counsel to businesses, said employers may turn down requests if they are coming in large volumes.
“In normal times if I have two people out of 1,000 that need the accommodation, it may be reasonable. What’s reasonable is judged against your resources,” she said. “But you can’t have 500 people out of a thousand asking for accommodation.”
Workers who cannot reach an arrangement with their employers may not have much recourse. The EEOC mediates disagreements between employers and workers, and can investigate alleged abuses of the law. But it settles only 13 percent of all complaints, according to an investigation by Public Integrity.
Not every person who is at an increased risk from COVID-19 can claim disability under the ADA. Lawyers say the law likely does not protect older workers, and it won’t cover those who are concerned about transmitting the virus to people in their households who may be vulnerable.
Employees who cannot work from home will likely have a more difficult time convincing employers to make reasonable accommodations and deciding on what constitutes the essential functions of their jobs, East said.
This was the issue in A.J.’s case.
She argued that she could complete 85% of her work from home and come into the office during off hours to finish the remainder. Her employer said almost all of her essential job functions required her to be in the office.
At first her employer made some concessions. She was allowed to work remotely part of the week and use her vacation time to cover the rest of the time. But in May, when the office reopened, she was told the company was changing her part-time position, which she had held for seven years, to a full-time job that would require her to be in the office every day. A.J. said she believed the change was an effort to convince her to quit and allow the company to avoid her requests for accommodations.
A.J. said she felt she had to accept the job. She now goes into work every day. She has considered suing but worries about the cost of a lawyer and potential retaliation that could leave her without work for months, even if the case is decided in her favor.
ADA cases starting to emerge
Few cases on workers’ rights under the ADA during the pandemic have made it to the courts.
Disability lawyers said decisions on employment cases may lag because workers requesting reasonable accommodations are expected to first negotiate with their employers.
Rebecca Salawdeh, an employment lawyer in Wauwatosa, Wisconsin, and the president of the Employee Rights Advocacy Institute, said she recently started taking cases from teachers and professors who have been asked to return to school. She is representing a group of teachers with disabilities that place them at high risk. They may ask the school district for a year of leave and a guaranteed job when they come back. Negotiations are ongoing.
But the number of complaints nationwide thus far is small. As of this month, New York’s Human Rights Department reported it had received 75 complaints of disability discrimination or denial of accommodation related to COVID-19. In Florida, 45 complaints related to COVID-19 have been filed. But Nevada has not seen an increase in calls or complaints.
“It is possible that no one has filed because we’re living this in real time,” said Kara Jenkins, the administrator of the Nevada Equal Rights Commission. “Claimants have yet to come forward or they may fear retaliation because they have bills to pay.”
Meanwhile, A.J. continues her battle with diabetes and the fear of catching COVID-19. She said the stress of going into work has made her diabetes worse. She recently visited her endocrinologist and was told she may have to go back on insulin because her blood sugar is high.
“I’m hanging in there by the skin of my teeth,” A.J. said.
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