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ANALYSIS: RTO, Covid Issues to Drive Ramp-Up in ADA Litigation

Nov. 1, 2021, 7:02 AM

The Covid-19 pandemic has created a host of challenges for employers. As more employees return to the office in 2022, employers will face tricky compliance questions—and, most likely, increased litigation—under one body of law in particular: the Americans with Disabilities Act (ADA) and its state and local counterparts.

Litigation and Charge Trends

As employers call employees back to the office, either full-time or on a hybrid schedule, three issues will likely drive an uptick in ADA litigation:

  • requests for telework as a reasonable accommodation;
  • long-haul Covid-19; and
  • vaccine mandates and exemption policies.

This anticipated rise in ADA litigation follows a period of fluctuations in the number of ADA cases filed in federal court, according to an analysis of Bloomberg Law Dockets. While the number of cases rose from 2016–2018, they declined in 2019 and 2020. But they are already on the rise in 2021, with cases filed over the first three quarters of this year exceeding the number filed in the same time period of the prior year.

During the past five years, more ADA cases have been filed in the fourth quarter of each successive year. If that trend continues, 2021 will close with more cases filed this year than last. And conditions are favorable for ADA cases to surge in 2022.

Meanwhile, charges that include ADA claims have made up an increasing percentage of all charges filed with the EEOC over the 2016-2020 time period (although the total number of charges that include ADA claims decreased from 2016-2019).

Requests for Telework Accommodations Will Increase

Employers may be in a tough spot in 2022: Can they argue that working in the office is really an essential job function, after 18-plus months of remote work?

Post-pandemic, courts may be more willing to view remote work as a reasonable accommodation than they had been in the past. Before Covid-19, there was some litigation over whether telework is a reasonable accommodation for employees with ADA-covered disabilities. Employers argued that employees’ physical presence at the worksite was an essential job function, and courts were pretty receptive. But the coronavirus pandemic has changed how and where many Americans work. Now, if employers refuse such requests, disabled employees will likely take those cases to court, pointing to ADA protection in support of their requests to continue working from home. If successful, other disabled employees will take their claims to court as well. And of course, employers and employees will continue to disagree over the reasonableness of other types of accommodations, like unpaid leave, flexible work schedules, and alternative worksites too, spurring additional ADA cases.

According to Equal Employment Opportunity Commission (EEOC) guidance, employers that allowed teleworking during the pandemic do not have to continue allowing it once worksites reopen. But that is not a free pass for employers to deny accommodation requests without engaging in the interactive process. Indeed, the EEOC recently filed its first Covid-19 telework accommodations lawsuit, involving an employee with a heart condition who was allegedly terminated after her request to continue working from home was denied. It is unlikely to be the EEOC’s last.

A number of other ADA cases involving requests to telework are already pending. For example, a teacher in a high-risk category for contracting Covid-19 sued her school district after it allegedly failed to consider her request to work from home, a manager with prostate cancer sued for discrimination, failure to accommodate, and retaliation after his requests for reasonable accommodation, which included remote work, were denied, and a professor with lung and heart conditions filed a charge with the EEOC (a prerequisite to litigation) after her request for continued telework was denied.

There are also telework lawsuits pending under state and local disability laws, such as a case filed by an in-house lawyer with underlying health conditions who claimed he was terminated after refusing to return to the office, and a case brought by an employee with COPD whose employer allegedly terminated her without addressing her requests for accommodation, which included telework.

Long-Haul Covid-19 Is a New Disability

Over the coming year, courts will continue to flesh out the contours of actual and perceived disability claims based on Covid-19.

Thanks to the pandemic, there is a brand new type of disability. The Department of Justice and the Department of Health and Human Services, as well as the EEOC, have stated that “long-haul” Covid-19 may qualify as a disability. Long-haul Covid-19 involves symptoms that can last for weeks or even months following infection. Further EEOC guidance is forthcoming, but litigation alleging discrimination and failure to accommodate long-haul Covid-19 has already been filed.

Courts are also wrestling with whether Covid-19 itself can even be considered a disability. For example, one court denied an employer’s motion to dismiss a claim that the employer had “regarded” the employee as disabled when it terminated her following a positive Covid-19 test. That case recently settled, but it is not the only case that has been filed advancing that theory. If successful, it would expand the “regarded as” prong of the ADA. And another court recently rejected an employer’s argument that Covid-19 was simply not covered by the ADA.

Vaccine Mandates May Bring Class Actions

In 2022, plaintiffs’ attorneys will continue to advance creative theories challenging vaccine mandates, exemption policies, and exemption request decisions, driving up the number of ADA cases.

Court rulings to date confirm that employers can lawfully mandate vaccines, as long as they provide exemptions for approved reasons of religion and disability. Future vaccine mandate litigation will likely challenge the Occupational Safety and Health Administration’s authority to issue the Emergency Temporary Standard, or its interplay with state and local laws prohibiting mandates.

There are already pending disputes over employer exemption policies and exemption request decisions. Such cases will continue to be filed as mandates take effect. While disability cases often involve single plaintiffs, mandates and exemption policies apply to the broader workforce, making employers more vulnerable to class claims, like the case pending over one company’s policy of granting unpaid leave as an accommodation. Blanket policies denying future telework, for example, could also expose employers to class liability.

There may be other kinds of ADA claims related to vaccines too. If an unsuccessful job applicant had put their vaccine status on their resume, an employer may face a failure to hire claim. Employers should also be careful about which employees they refuse to bring back to the worksite. For example, the EEOC has filed a lawsuit against an employer who allegedly would not let two disabled employees come to work until they were vaccinated (before vaccines were available).

Access additional analyses from our Bloomberg Law 2022 series here, including pieces covering trends in Litigation, Regulatory & Compliance, Transactions & Contracts, and the Future of the Legal Industry.

Bloomberg Law subscribers can find related content on our In Focus: Coronavirus (Covid-19) page and Return-to-Office Toolkit.

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