Everything is about the coronavirus both in our personal lives and in our professional lives. You can find several excellent blog entries on the coronavirus from people in my blog roll, such as but not limited to Jon Hyman and Eric Meyer. I saw the other day that OSHA has weighed in as well. There is legislation currently pending in Congress that would offer relief to people who come down with the virus and work for employers of less than 500 people. The coronavirus has become such a big part of legal blogging that Lex blog even has its own coronavirus category you can subscribe to.
What I wanted to do was to focus on some basic concepts of the ADA as it applies to the coronavirus. This discussion is not meant to be exhaustive of all ADA issues that may be out there. Rather, it just hits some of the obvious considerations. Also, the blog entry is not divided into our usual categories, rather it is just a series of individual items.
- Is coronavirus a disability? As with all things ADA that’s complicated. It certainly is a physical impairment. Does it limit a major life activity? Well, the EEOC would certainly say that it substantially limits the major life activity of interacting with others. No one could seriously argue that it wouldn’t substantially limit the major life activity of breathing. It certainly impacts the immune system and the respiratory system. Before the amendments to the ADA, you could argue that the coronavirus is a temporary condition and therefore, not protected. After the amendments to the ADA, it isn’t so simple. The EEOC has said that a condition lasting less than six months may well be a disability under the ADA as amended. I have said previously that a good preventive tool for figuring out whether a temporary disability may nevertheless be a protected disability would be borrowing from the regarded as provisions, which contains an exception for disabilities that are both transitory and minor. Coronavirus is certainly transitory, but it may or may not be minor. Again, using the transitory and minor provisions this way is a preventive law approach and not demanded by the statute or the final implementing regulations themselves.
- For a person with coronavirus to be protected under the ADA, they also must be qualified. Under title I of the ADA final implementing regulations –29 C.F.R. §1630.2(m)- a person with a disabling condition is qualified if he or she satisfied the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodation, perform the essential functions of the job. So, the question then becomes can the person with coronavirus perform the essential functions of the job with or without reasonable accommodations. That of course leads to the question whether telecommuting is a reasonable accommodation. We have talked about quite a bit whether telecommuting is a reasonable accommodation, such as here. Whether telecommuting is a reasonable accommodation depends very much upon whether attendance is an essential function of the job. For that question, I prefer looking to the Samper case for figuring that out. However, the game has now changed since everyone is being encouraged to telecommute. Finally, I just read an article in the Wall Street Journal opinion page today how everybody moving to telecommuting is going to fundamentally change the nature of work. Once worksites and individuals realize that telecommuting is something that can be done and see its benefits, the thinking is that people will not look back. Also, definitely look for telecommuting as a result of the coronavirus to be used as a sword by plaintiff lawyers in the future saying that since everything was fine when telecommuting happened with the coronavirus, how could it not be allowed without the coronavirus. To head off that possibility, I saw on LinkedIn a posting by David Fram, ADA training director, NELI, saying that it would be a good idea for an employer to put out a notice saying they recognize that the essential functions of the job may not all be performed in light of the coronavirus but that does not mean they are forever waving all of the essential functions of the job. I thought David’s idea had a lot of merit to it. Even so, I still expect plaintiff lawyers in the future to use telecommuting done as a result of the coronavirus as a sword in the future for the proposition that telecommuting should be in order as a reasonable accommodation once the coronavirus is out of gas. Samper Samper and more Samper.
- Record of is another ADA concept needing to be kept in mind. A person has a disability if they have a record of a disability. Is a person who had the coronavirus a person with a record of the disability once they have gotten the coronavirus? Again, that is going to depend upon whether this particular illness, especially in light of the transitory nature, could be considered a disability. So, in the future some time, employers are going to want to be wary of taking adverse action against a person who had the coronavirus on that basis.
- Regarded as is yet another concept. Regardless of whether the coronavirus is a disability, a person can be protected under the ADA if they are regarded as having a physical or mental impairment and adverse action is taken against them on the basis of that. True, regarded as does not allow for reasonable accommodations. However, everybody is supposed to be home anyway. That said, some businesses are open, and they may be taking adverse action against customers or employees because they assume a physical or mental impairment exists. They want to be very careful when they do that. Also, see the direct threat discussion below. A substantial limitation on the major life activity is not necessary for regarded as claims.
- Associational discrimination. Title I of the ADA at 42 U.S.C. §12112(b)(4) prohibits discrimination because of the known disability of an individual with whom the qualified individual is known to have a relationship or association with (Title II final implementing regulations at 28 C.F.R. §35.130(g) and title III final implementing regulations at 28 C.F.R. §36.205 stand for the same proposition). A few things about this. First, there is no reasonable accommodation requirement. However, with the coronavirus, a tremendous amount of people are working remotely from home anyway. Second, the association discrimination provisions use “because of,” language and not on the basis language, which creates an issue that causation may well be different for association discrimination than it is for discrimination against the individual with a disability. Third, the courts are split on what is necessary for an association discrimination to apply. That is, in a case we discussed here, the Seventh Circuit and the Second Circuits, which followed the Seventh Circuit decision, have said that association discrimination must fit into one of three categories. However, the Sixth Circuit, here, has said that the three theories articulated by Judge Posner are not necessarily an exhaustive list. Recently, the United States District Court for the Middle District of North Carolina in Schmitz v. Almanance-Burlington Board of Education (Schmitz is a tour de force with respect to dealing with association discrimination claims, and I have it in my pipeline of cases to blog upon), explicitly cited to the Sixth Circuit and also said that association discrimination claim need not fit into one of Judge Posner’s categories.
- DIRECT THREAT. There is a reason why I put “direct threat,” in all caps at the beginning of this paragraph because it is the number one ADA consideration at the moment. Direct threat is something we have talked about numerous times before, such as here. What is critical to remember it’s a couple of things. First, the EEOC regulations-29 C.F.R. §1630.2(r)-, and the DOJ regulations- 28 C.F.R. §§35.139, 208-, echo the United States Supreme Court decision in Chevron v. Echazabal, which we have discussed here. Second, the EEOC regulations allow for a direct threat to self or others, while the DOJ regulations only talk about direct threat to others. All require a determination based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence after an individualized assessment of the individual’s present ability to safely perform the essential functions of the job (title I), or to meet the essential eligibility requirements of the nonfederal governmental entity’s programs, services, or activities (title II). All require reasonable accommodations/reasonable modifications being made up to the point of direct threat. In determining whether a direct threat exists, you look at per School Board of Nassau County, Florida v. Arline, here: 1) the nature of the risk (how the disease is transmitted); 2) the duration of the risk (how long is the carrier is infectious); 3) the severity of the risk (what is the potential harm to third parties); and 4) the probability the disease will be transmitted and will cause varying degrees of harm.Finally, as we have discussed here, direct threat may or may not be an affirmative defense.
- Where do I go to get information about the coronavirus? Why do I even need information about the coronavirus? There are two answers to that question. First, everyone needs information about the coronavirus. What you see on the media can be all over the place. The number one source you want to go to is the CDC website on coronavirus. They are also constantly every day issuing more and more guidelines and more and more information. Second, the reason you need to know the CDC information is because direct threat has to be based upon an individualized analysis based upon the most current medical knowledge and/or the best available objective evidence.
- The ADA does not end with everybody working remotely nor does it end with respect to people accessing nonfederal governmental entities or places of public accommodations. The context may be different than before thanks to the coronavirus, but the ADA rules do apply. Of course, direct threat, as the ADA understands the term, is as important as ever.
- This blog entry is not supposed to be an exhaustive list of all ADA concepts that may be involved when dealing with the coronavirus, but it is certainly a start. For specific legal advice on the ADA concerns, contact an ADA knowledgeable attorney. Finally, it isn’t just the ADA involved. You also have OSHA, Workers Compensation, and FMLA to name just a few involved as well and for that, contact knowledgeable attorneys in those areas.
Do social distancing (I am planning on using an app to even go grocery shopping for me), wash your hands frequently, stay healthy, and hang in there y’all.