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Pandemic Exposes Ongoing Job Challenges for Disabled Workers

July 24, 2020, 9:51 AM

The Covid-19 pandemic has trained a spotlight on the scope and effectiveness of the federal civil rights law that protects people with disabilities, as jobless rates increase for the underrepresented workforce.

In the three decades since the Americans with Disabilities Act passed, courts have weighed in on which workers are shielded from discrimination under the law and when they must receive reasonable accommodations. The spread of the coronavirus has tested those issues while also raising new legal questions for essential workers and dilemmas for employers facing return-to-work plans.

Debates have circled around whether Covid-19 or mental health issues exacerbated by the pandemic are disabilities, and whether telework is a reasonable disability accommodation. Courts have also ruled in ways that veered from U.S. Equal Employment Opportunity Commission guidance, including whether workers who are at risk of contracting a disease, like Covid-19, should receive disability protections.

As these questions remain, only about 30 percent of disabled Americans participate in the workforce, and the pandemic is shrinking the labor market for the roughly 30 million of them who perform essential jobs in food service, hospitality, and retail. During the peak of the pandemic-induced job losses, 18.9% of disabled Americans were unemployed, compared to 14.3% of the rest of the population. In June, the jobless rate for the disabled fell to 16.5%, while the rate for everyone else dropped to 11%, signaling a faster recovery for the general population.

Disability discrimination charges filed with the EEOC have risen steadily since 2002, according agency statistics. The ADA, although it removes barriers to employment, doesn’t require employers to hire people with disabilities, said Margaret Nygren, executive director of American Association on Intellectual and Developmental Disabilities.

“People with disabilities have been able to enjoy community living, to shop and bank and be on the street. Employment still is a barrier and hasn’t been able to break through,” Nygren said. “The solution is not a curb cut or putting something in Braille. It takes intentionality to find good candidates whether they have a disability or not.”

Underrepresented Despite ADA

The underlying principle of the ADA was to extend to the disabled the basic civil rights protections given to minorities and women under the Civil Rights Act of 1964. Before the ADA, no federal law prohibited discrimination against people with disabilities, absent a federal grant or contract.

The ADA was signed into law by President George H. W. Bush on July 26, 1990, after decades of struggle from advocates seeking to make the country more accessible to people with disabilities. It’s been lauded as a piece of legislation that has rectified years of segregation and exclusion of the community in education, housing, and access to public accommodations.

Former U.S. Sen. Tom Harkin (D-Iowa), who introduced the ADA, told Bloomberg Law that the outcome has been positive over the last 30 years in helping people with disabilities have independent living and economic self-sufficiency, but workplace participation rates remain an issue. He said he wishes he had pushed harder for some kind of provision that would have set up benchmarks for employment.

The government has set a 7% hiring goal for people with disabilities at federal contractor worksites, under a separate law known as the Rehabilitation Act. However, that goal is an aspirational target, not a requirement. It’s only been in effect for about six years.

“I wish we had been stronger on the employment side,” said Harkin, who retired from the Senate in 2015. “The percentages of adults with disabilities in the workforce is about the same as 30 years ago. That’s awful.”

Pandemic Concerns

The Covid-19 pandemic has led to a new focus on the ADA, as well. The EEOC offered guidance for employers on how to apply the law during the pandemic, including clarifying that diagnostic testing is appropriate to assess direct threats in the workplace. The number of disability claims due to the coronavirus under the ADA is expected to rise. Worker advocates hope telework accommodations offered by employers will increase post-pandemic.

Questions remain about whether Covid-19 should be considered a disability by itself, but the lasting effects of the disease would likely mean a worker could seek accommodations. Employers are focusing on how to make sure employees can return to work safely and not violate the law.

What is considered a “reasonable accommodation” hasn’t evolved as much as people expected, said Robert Dinerstein, acting dean and law professor at American University Washington College of Law.

The right to telework and more flexibility in office work could become a bigger issue for employers, particularly after the pandemic required many workers to work from home. He said privacy questions that arise from new measures to use temperature checks and other medical tests in the workplace could create untested legal questions.

“Some employers worry disability accommodations was a blank check, an unfunded mandate,” Dinerstein said. “The fact is that job accommodations, for the most part, don’t cost anything, and if they do, they are inexpensive.”

The biggest challenge for businesses tends to be determining what is considered a reasonable accommodation, and also not violate disability laws, said Seyfarth Shaw partner Daniel Klein, who represents employers. This will be difficult for disabled workers who are coping with their return-to-work plans and the requests from those who want to continue to work remotely.

“Employers are constantly grappling with this issue and are expecting more of these requests,” Klein said. “That’s the biggest challenge for employers.”

When it comes to Covid-19, however, the disease won’t likely qualify under the ADA if there isn’t a lasting condition beyond the illness itself,, nor does a person’s age who is high risk and the fear that a worker could pass it along to someone in their household, Klein said.

Problems Remain

The first decades of the ADA focused on the threshold for who has a disability, rather than getting into accommodations and restructuring the workplace, said Michael Waterstone, dean of Loyola Law School, who is a nationally recognized expert in disability and civil rights law.

The ADA’s amendments in 2008, along with U.S. Supreme Court battles, helped settle which workers can ask for accommodations. He said difficulties remain for voting, internet and website access, and in employment.

The disabled are more likely to be unemployed or poor, and face less explicit forms of discrimination, Waterstone said. He said training and health-care improvements would help the disabled get jobs.

“The employment rate of people with disabilities is not great and getting worse with the pandemic,” Waterstone said. “People with disabilities tend to do worse in recessions than those without. There will continue to be issues in the workplace.”

“Why didn’t the ADA work in this way? Part of it is good that you can’t discriminate, but you have to be able to get to the point where you can’t apply for a job to be discriminated against,” Waterstone said. “This will be education, job training, and transportation improvements, as well. The ADA will address some of those, but does an incomplete job for others.”

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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