Employers are threatening litigation if their policies discriminate or fail to adequately address Covid-19 long-distance drivers after the Biden government said workers with persistent coronavirus symptoms could be protected by the federal disability law.
People with long covid may be considered disabled under the Americans with Disability Act because the pandemic-related illness can severely limit one or more important life activities, the Justice and Health and Human Services departments said last week. More than 34 million Americans have been diagnosed with the coronavirus, and some studies estimate that about 10% of those who contract the virus could become long-distance runners.
“The instructions are pretty simple and straightforward, but the fact that authorities had to say that civil rights laws were not suspended during the pandemic tells you that there has been a lot of confusion and uncertainty about this,” said Jennifer Mathis, director of legal affairs and advocacy at the Bazelon Center for Mental Health Law.
The ADA allows workers to sue their employers for disability discrimination in employment decisions, as well as failure to make reasonable accommodation, which may include teleworking, vacation time, or flexible hours.
Disability rights advocates and advocates said most ADA labor disputes involving Covid long-haul vehicles arise when workers and employers go through an interactive process to determine whether a job change is appropriate and should be granted. Even during the pandemic, ADA’s housing requests have generally risen and workers have gone to court if denied, attorneys previously told Bloomberg Law.
“Rarely has our government taken such public, positive action to educate the country about a range of disabilities in order to foster a culture of understanding and compliance,” said Shirley Lin, law professor at Pace University, where she teaches courses on the subject Discrimination in the workplace taught.
“With millions of long-distance COVID drivers on the workforce or about to join the workforce, the legal challenge for employers is to train supervisors to comply with the full scope of the Disability Act,” Lin said in an email. “Ultimately, President Biden’s initiative will focus on upgrading the accommodation.”
The U.S. Equal Opportunities Commission, which the ADA enforces in private workplaces, has not addressed legal considerations for workers who have long suffered from Covid.
The DOJ and HHS guidelines raise questions as to whether an individual case of long covid meets the ADA definition of disability, which would trigger the employer’s obligation to maintain a job free from discrimination, harassment and retaliation and to adequately equip that worker become .
Disability discrimination lawsuits have been filed against workers who claim to have long had Covid, according to a Bloomberg Law review of court records.
“There are many things that turn into disabilities, depending on how they affect your life,” said Matan Koch, vice president of employee, leadership, and belief programs for RespectAbility, an advocacy group for people with disabilities. “If there were litigation on this issue, the litigation would likely focus on the issue of significant depreciation.”
Kara Ariail, a partner on the management side of Holland & Knight LLP, said that after the effects of the disease, this “fits pretty clearly into the ADA definition of disability”.
The next question that is likely to spark a lawsuit is whether a precaution is appropriate or undue hardship for a company, said Jay Zweig, partner at Ballard Spahr LLP who represents employers.
According to the EEOC, an employer can use several factors to determine whether accommodation presents undue hardship, including but not limited to the cost of the accommodation and its impact on business operations.
According to the instructions, Long-Covid can be characterized by tiredness, dizziness, thinking or concentration difficulties, among other things.
Ariail said cognitive problems are “generally very difficult to manage” from an employer’s perspective, but “you have to strike the right balance between being able to perform your job duties.”
Ariail said she welcomes the new guidelines, which she believes remove some of the ambiguity and uncertainty involved in navigating lengthy Covid-related housing requests.
Obtaining medical records to support workers’ requests for housing is a best practice for employers, Ariail said. “In many ways the process isn’t new – I think it’s just another challenging situation in terms of evaluating ADA properties,” she said.
“Employers really don’t need a policy, they need a process,” said Ballard Spahrs Zweig.