Pandemic Fueling Disability Accommodation Claims

By Braden Campbell
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Law360 (May 27, 2020, 10:21 PM EDT) -- Workers are filing more charges alleging their employers failed to accommodate their disabilities during the pandemic than any other allegation tied to COVID-19, the head of the U.S. Equal Employment Opportunity Commission's New York office and her state and city peers said Wednesday.

EEOC New York Deputy Director Judy Keenan said her office, which fields and presses bias claims for workers in New York and New England, has taken in only a dozen or so complaints of discrimination related to the pandemic, and each one has accused an employer of violating the Americans with Disabilities Act's accommodation provisions.

"I expect that we will see different cases as businesses reopen, but right now the only case we're seeing at the EEOC related to COVID are reasonable accommodation cases," said Keenan, who is serving as the New York acting director. 

Keenan discussed this trend Wednesday at a New York City Bar Association event promising New York-area practitioners "an inside view" of the EEOC and the state and city job bias watchdogs during the pandemic.

The view has been similar at the New York State Division of Human Rights, where accommodations have been "the biggest issue coming up as people get back to work in the state," general counsel Caroline Downey said.

"That's not surprising at all" given the dynamics of the pandemic, Downey said. Workers fear the virus, and as they're recalled to work, they may want protections. Disability law is one path to them.

The federal Americans with Disabilities Act and its New York city and state equivalents make employers provide disabled workers accommodation allowing them to do their job, as long as doing so won't pose an "undue hardship" for the business. If a worker has a condition that predisposes them to virus complications, they have a right to request an accommodation — and the employer has an obligation to look for one, although they don't necessarily have to provide exactly what the worker requested.

"There's many creative approaches that can be taken that will not only protect those individuals who have disabilities and are asking for a reasonable accommodation, but that will protect the rest of the workforce, too," Keenan said. For example, an employer can let a disabled worker continue to telework, provide them personal protective equipment, or stagger work schedules so few workers are in the office at any given time, she said.

Conversely, employers open themselves up to legal claims if they refuse to recall disabled workers out of concern for their health, said Sapna Raj, the deputy commissioner of the New York City Commission on Human Rights' law enforcement bureau. An employer can ask a worker if they would like an accommodation. But if the worker refuses, "the inquiry would end there under [New York] City Human Rights Law," Raj said.

"The employee ... has final say as to whether they feel they can come to work, and they're not harming others by coming to work," Raj said. State and federal standards give employers some leeway to tell disabled workers to stay home, but not much, according to Downey and Keenan.

The enforcers said they expect to see coronavirus-related complaints brought under other theories, including age and "caregiver" bias, in which an employer penalizes a worker because they care for a family member. Employers that refuse to rehire older workers or hire back only childless workers may face claims, they said.

--Editing by Jay Jackson Jr.

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