The Americans with Disabilities Act (ADA) of 1990 provides a number of legal protections for employees dealing with disabilities. The federal law applies to all employers (private and public) with 15 or more employees. One of the central tenets of workplace protections for disabled employees and candidates is the requirement for employers to offer reasonable accommodations.
Reasonable accommodations are modifications to a job or the workplace that allow disabled employees to perform essential job functions. However, employers are not required to implement reasonable accommodations if doing so would pose an undue hardship; that is, the reasonable accommodation would represent a significant expense or undertaking.
What Is a Disability Under the ADA?
There is no definitive list of disabilities recognized under the ADA. Generally speaking, a disability is a physical or mental “impairment” that “substantially” limits one or multiple “major life activities.” A major life activity is something like breathing, walking, seeing, hearing, or performing manual tasks.
While we are still learning about COVID-19 and its effects, there is little debate on the decreased quality of life for so-called COVID “long haulers.” Medical professionals estimate that roughly one in five people infected with COVID-19 deal with symptoms months after the initial infection. Many of these long-haulers have already had to find other work—if they are able to work at all.
Because COVID-19 is still fairly new, there is scant case law on whether or not long-haulers are recognized as having a disability under the ADA. A few long-haulers have applied for Social Security Disability Insurance, but the definition of a disability is different for those seeking compensation in that context.
The ‘Interactive Process’
Generally, employees and candidates are required to inform employers if they believe they have a disability. As long as the employer agrees, the two parties must start an “interactive process” wherein they discuss possible reasonable accommodations. If a candidate is qualified for a job and can perform its essential functions with reasonable accommodations, the employer may not discriminate against the candidate on the basis of his or her disability. The same goes for all other aspects of the hiring process.
If an employee believes he or she has a disability due to lingering symptoms of COVID-19, the responsibility is on the employee to inform the employer. As long as both parties agree on the employee’s assertion of a disability, they may begin the interactive process to search for reasonable accommodations. The uncertainty lies in whether or not courts will agree that COVID-19 long haulers are disabled under the ADA (and thus deserve reasonable accommodations). Most experts agree that we should start getting some definitive answers soon enough.
Make Sure Your Workplace’s Policies Are Legally Sound
Staying in compliance with applicable local, state, and federal laws has arguably never been more difficult for Florida employers. Still, non-compliance with these laws can end up being quite costly for business owners. Trembly Law Firm can help your business defend against ADA-related lawsuits and implement proactive measures to decrease the chances of litigation. Contact our team today to discuss your options.