ALEXANDRIA, Va.—COVID-19 is considered a disability according to the U.S. Equal Employment Opportunity Commission (EEOC), and that may create confusion and possible lawsuits, reports Bloomberg, as companies are unsure how to handle workers who experience long-haul symptoms from the virus, which include brain fog, headaches and shortness of breath.
Not everyone with COVID-19 symptoms will qualify under the EEOC’s guidance, but there have already been discrimination lawsuits under the Americans with Disabilities Act (ADA). The long-haul symptoms are covered under the ADA’s three definitions for a disability, which cover actual physical or mental impairments that substantially limit a major life activity; an employer’s perception that a worker has a disability; or the worker’s record of impairment.
Companies can still fire employees for getting the virus if it’s a “direct threat” to their workforce, said Ruth Colker, a law professor of constitutional law and disability discrimination at Ohio State University.
“We think of the ADA as protections for employees, but it also provides legitimate protections for employers,” Colker said. “It’s as if they are creating rules that aren’t consistent with the medical reality on the ground.”
In the EEOC guidance, employees can sue when they’re “regarded as” having a disability by their employers.
“Employers have a lot of information in their possession they might not otherwise have had,” said Adam Sencenbaugh, a partner with Haynes and Boone LLP. “Before the EEOC guidance it was unclear where these claims could be pursued. It creates a pool of potential risk for employers.”
The guidance says that employers facing a suit can argue that they took action against their workers because of a threat that spreading the virus would cause to their operations. Colker says that employers have the power to argue “direct threat” in defending adverse employment actions, such as termination or demotion, simply for getting the virus.
If an employee does experience long-haul COVID-19 symptoms, employers will have to decide how to accommodate them at work. Haynes Boone’s Sencenbaugh said it will be difficult to match an accommodation with long-haul COVID. He predicted more litigation surrounding reasonable accommodations that employers must provide.
Employers aren’t required to automatically grant disability accommodation requests. They can defend decisions to deny them by arguing that the accommodation would pose an undue hardship on their business.
Upcoming Briefings on OSHA’s Vaccine-and-Test Standard
The Department of Labor will provide a briefing today from 2-2:45 p.m. with senior DOL and OSHA officials to discuss recent developments and updated guidance related to the rule. A prerecorded webinar on the content of the ETS is available here. Attendees are encouraged to review guidance and information from OSHA ahead of the briefing and submit questions. RSVP here.
The U.S. Court of Appeals for the 6th Circuit last week dissolved the 5th Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard (ETS). The Department of Labor and the Occupational Safety and Health Administration (OSHA) can now resume implementing the ETS.
However, legal challenges to the mandate are now before the U.S. Supreme Court.
NACS filed an appeal with the U.S. Supreme Court asking for the high court to impose its own stay during litigation. The appeal argued that the OSHA rule “will inflict irreparable harm upon hundreds of thousands of businesses across the retail, wholesale, warehousing, transportation, travel, logistics, and commercial industries that collectively employ millions of Americans.” And, in NACS’ view, the rule would amount to a “transformative” expansion of OSHA’s authority without congressional authorization. By Saturday, five other cases had also filed appeals with the Supreme Court.
OSHA said it will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.