The risk of a Vermont ADA lawsuit with Covid-19

The COVID-19 outbreak has produced uncertainty across the spectrum, including legal uncertainty for how the American’s With Disability Act, or ADA, is affected by the ongoing situation. Both employers and employees should know that the ADA protects individuals who have an impairment affecting their ability to perform a major life activity from discrimination in both hiring and employment. The ADA can also require employers to make reasonable accommodations for people who are protected by the ADA and otherwise qualified to do the job. The ADA goes beyond just employment to requiring business make public accommodations for individuals covered by the ADA.

Who specifically is covered by the ADA is a major topic in itself. The ADA defines major life activities in great detail. A word of note, if in doubt about whether someone is protected, the ADA is written in favor of broad coverage under the terms of the law. If you feel you might be protected by the ADA or one of your employees might be, it may be time to consult an attorney about the rights and obligations that come up with the ADA.

So what does all this mean for COVID-19? Is everyone over 50 now protected by the ADA? What reasonable accommodations must be made to keep Immuno-Compromised essential employees safe? Do we have to serve customers who present symptoms? Can workers be terminated for insisting they work remotely? The classic attorney answer to these questions is; maybe, it’s complicated.

The ADA generally does “not apply to impairments that are transitory and minor.” Transitory being 6 months or less. Note that the impairment must be both transitory and minor to be excluded from ADA protection. Even if the impact of COVID-19 is less than 6 months people may still be covered by the ADA if their condition is not minor. As to what constitutes minor this can be answered with more specificity, functions of the immune system are defined as a major bodily function by the ADA. 

Bragdon v. Abbott, 524 US 624 (1998) can also help clear up some of the uncertainty. In Bragdon the Supreme Court held that a person’s HIV infection which had not progressed to AIDS was a disability covered by the ADA under the facts of the case. The Court required the trial court to undertake review of whether sufficient evidence of an objective, scientific basis for the defendant’s actions was submitted to the court. Public accommodations do not necessarily need to be made available under the ADA in light of the risk from COVID-19. A business would likely have good grounds to turn away customers or employees who test positive for COVID-19 or exhibit symptoms discussed in scientific literature. If you have concerns about your customers or clients now may be a good time to consult with an Attorney about your business policies regarding quarantine and social distancing. 

As for an Immuno-Compromised employee, depending on their job function, they may be entitled to work from home or socially distance for the foreseeable future. The ADA and Bragdon both make clear that these people are entitled to protection but what exactly constitutes a “reasonable accommodation” according to the ADA?

Again this depends on the business and the person’s job. The ADA generally requires that the person be able to fulfill the essential job functions with reasonable accommodations. Not every accommodation is going to be considered reasonable. The cost of the accommodations as well as the employers resources are factors to consider. As an example, if the State were to end it’s shelter in place rules tomorrow, a bookkeeper for a General Store who is over 50 with a heart condition has a right to self isolate and work from home as a reasonable accommodation under the ADA. That same person if they were a cashier would likely not be able to work from home because they are no longer able to perform an essential job function. The employer may be required to offer a mask and gloves as a reasonable accommodation.

In McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F. 3d 92, 2nd Circuit (2009) the plaintiff was offered a respirator for protection against fumes at her place of work. She declined this offer, did not make other proposals, and was terminated. The court upheld this termination. It is wise for both employers and employees to negotiate resolution to reasonable workplace accommodations in good faith. 

For employees, an offer of accommodations doesn’t automatically have to be accepted but you should be prepared to offer other solutions. Transfer to other jobs with your employer isn’t automatic either. You need to be able to show that you are qualified to do those jobs. In McBride the employer had vacancies but these jobs were in effect promotions for the plaintiff and required a college degree or office work experience which she didn’t have.

For employers, they should take employee suggestions and requests seriously. While “because I said so” might be effective at the moment you say it, your words could lead to litigation. Depending on what specifically was said it could also hurt you again during litigation if you are unreasonable in the eyes of a jury. If an accommodation can’t be done in a cost effective way be ready to explain that in detail, the same goes for essential functions of the job. As the defendant in Bragdon learned just believing something doesn’t make it an objective fact. For medical issues and concerns be ready to get an opinion from a doctor about what may impact your employees, at the very least be prepared to review CDC guidelines and consult with an attorney about your specific situation.

Right now there is a lot of confusion about how long the current crisis will last and what precautions to take when we all come back into the office. Both employees and employers should take the time to review company policies if you have them and to think now about what changes might need to be made to keep everyone safe from both COVID-19 and an ADA lawsuit.

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