DGRead 21.10.01

Did You Miss the Stafford Webinar on 9/22?; Has COVID Slowed the Fastest Civil Trial Court in the Land?; Virginia Enacts Enhanced Protections for Disabled Employees; What to Do When COVID-19 Long-Haulers Seek Exemptions from Vaccine Mandates

Virginia enacts enhanced protections for disabled employees

By: Jonathan R. Mook

Since the 1980s, Virginia has prohibited employment discrimination against disabled workers under the Virginians with Disabilities Act (VDA). Accordingly, it’s understandable many employers in the state may have overlooked critical amendments to the Virginia Human Rights Act (VHRA) enacted by the legislature this year and signed into law by Governor Ralph Northam. The amendments, which took effect on July 1, give additional legal protections to persons with disabilities and provide stronger remedies to those who have been discriminated against.

New accommodation requirements

As was the case under prior Virginia law, employers with five or more workers must provide reasonable accommodations to disabled employees unless doing so would create an undue hardship. The new legislation, however, imposes specific requirements on employers in reasonably accommodating employees, which weren’t previously included in the VDA.

You now have an affirmative obligation to engage in a “timely, good-faith interactive process” with disabled employees who request a reasonable accommodation. And you may not require them to take unpaid leave as an accommodation if another reasonable solution is available.

Undue hardship analysis

In determining whether an accommodation creates an undue hardship, the new amendments to the VHRA specifically state you should consider:

  • Nature of the operation and size of the facility;
  • Proposed accommodation’s cost;
  • Possibility the same accommodations may be used by other employees; and
  • Safety and health issues.

Additionally, there is now no dollar limitation on how much you may need to spend to provide a required reasonable accommodation. The legislature eliminated the former rebuttable presumption that any accommodation exceeding $500 imposed an undue burden on employers with fewer than 50 employees.

Posting requirements

The new legislation further requires you to post information about the rights of employees with disabilities in a conspicuous location at the worksite and in any employee handbook.

The information also must be provided to new employees when they start their jobs and to any employee within 10 days after she informs you she has a disability.

Enhanced remedies

Finally, should you fail to follow the requirements of the new legislation, employees with disabilities now have greatly enhanced remedies. If they believe they have been discriminated against in violation of the statute, they will first need to file with the Virginia Office of Civil Rights. But upon the issuance of a right-to-sue notice, they may file a lawsuit in state court and request a jury trial.

Moreover, if you are found to have violated the statute, you may be liable for compensatory damages (without any limitation on the amount), back pay, attorneys’ fees, and other relief.

In many ways, the new Virginia protections for employees with disabilities are greater than afforded by the federal Americans with Disabilities Act (ADA). Hence, in the future, employers charged with violating a disabled employee’s rights will likely have the case litigated in state court before a jury, with the employer facing the possibility of unlimited damage awards.

Bottom line

It’s critically important for Virginia employers to become familiar with your obligations under the new amendments to the VHRA protecting individuals with disabilities. Make sure to provide your employees with notice of the new law’s provisions. Also remember to engage with an employee with a disability who requests a reasonable accommodation. That way, if any questions arise later, you can document the steps you took to comply with your statutory obligations.

Given the enhanced remedies available to employees under the new VHRA amendments, you are well advised to consult with experienced employment counsel to ensure you are fully complying with the new Virginia protections for individuals with disabilities. You don’t want to discover you haven’t been adhering to the new law’s requirements only after a discrimination charge or a lawsuit has been filed.

Jonathan R. Mook is an attorney with DiMuroGinsberg, P.C. in Alexandria, Virginia. You can reach him at jmook@dimuro.com.


What to Do When COVID-19 Long-Haulers Seek Exemptions from Vaccine Mandates

By Allen Smith, J.D. September 20, 2021

COVID-19 long-haulers—those experiencing long-term effects of COVID-19—who seek disability-related exemptions from mandatory vaccination policies are straining employers’ accommodation processes.

The Occupational Safety and Health Administration’s (OSHA’s) anticipated emergency temporary standard—which will mandate employees of businesses with at least 100 workers get vaccinated or submit to weekly testing—will result in more employers requiring vaccines. OSHA’s rule will almost certainly affirm that employers must accommodate employees who refuse to be vaccinated based on a medical exemption or sincerely held religious belief, said Paula Ketcham, an attorney with Schiff Hardin in Chicago. With the rise of the delta variant, more small employers also are starting to mandate vaccinations.

What if an employer believes that a COVID-19 long-hauler is requesting an exemption simply because the person is opposed to vaccinations rather than having a medical condition that would put that person at risk if he or she was vaccinated?

“Employers should always balance empathy for its staff with the safety of its overall workforce,” said David Epstein, SHRM-SCP, director of domestic human resources at Doctors Without Borders in New York City.

“Those who ask for an exemption from the vaccine should be afforded a pathway to apply for an exemption for medical reasons, and the required interactive dialogue should take place as is required” by the Americans with Disabilities Act (ADA), Epstein noted. “After that dialogue takes place, there are two options: a reasonable accommodation, which could include working remotely, or termination of employment if your company requires the vaccine and working remotely causes an undue hardship under the ADA.”

Featured Resource Center COVID-19 Vaccination Resources

Collect Information

The interactive process allows employers to collect information to make an intelligent and informed decision on an accommodation request, said Peter Petesch, an attorney with Littler in Washington, D.C.

If long-term effects of COVID-19, also known as “long COVID,” are not already known or obvious, the employer may request medical documentation to determine if the condition is an ADA disability and, if so, if there is a reasonable accommodation, said Christine Walters, J.D., SHRM-SCP, an independent consultant with FiveL Co. in Westminster, Md. Long COVID-19 can rise to the level of an ADA disability.

“No two situations are necessarily identical,” Petesch said. “Everything will depend on the medical information that an employee furnishes through their health care provider in connection with a request.”

Employers should not play doctor, cautioned Jonathan Mook, an attorney with DiMuroGinsberg in Alexandria, Va. “Although some studies indicate that vaccination may actually assist in mitigating the symptoms of long COVID-19, rather than causing any harm, the assessment of a long-hauler’s request to be exempted from vaccination should be done by a medical professional—not the employer,” he said.

“Ask the employee to provide medical documentation from his or her physician that the employee would be put at risk by being vaccinated,” Mook continued. “If an employee does this and an employer still has a question as to the legitimacy of the request, I usually recommend that the employer retain a physician knowledgeable in the field to act as a consultant to assess the documentation of the employee’s doctor.”

If, as a result of that assessment, the medical expert indicates that additional information is needed, the employer has a basis to request further medical information from the employee. “This entire process should be documented, as the initial stage in the ADA interactive process,” he said.

If the employee can’t provide any information as to why the medical condition prevents him or her from receiving the vaccine and instead can articulate only a generalized fear of the vaccine, that is not sufficient to trigger an employer’s obligation to provide an accommodation under the ADA, said Amanda Van Hoose Garofalo, an attorney with BakerHostetler in New York City.

Employers may have difficulty determining what is reasonable medical care for an underlying condition, she noted. “Further, it is certainly possible that individuals with the same condition will receive different advice from their health care providers,” Garofalo said.

Long COVID-19 manifests in a variety of ways, so some people may have it severe enough to qualify as a disability and some may have a less severe version, she added. “As a result of these variances, some individuals with long COVID may request exemptions, while others receive the vaccine,” Garofalo said.

Accommodation Options

“If the medical documentation is sufficient, then an employer should engage with the employee about how the employee can perform his or her job without putting the employee or others at risk due to the unvaccinated status of the long-hauler,” Mook said.

Options include:

  • Wearing a mask at work with testing on a periodic basis.
  • Working in an area where the employee will not come in close contact with other employees.
  • Remote work.

“Changing or limiting an employee’s location or interaction with others must be done with care,” he said. “You do not want to single out or stigmatize an employee who is being accommodated.”

Many employers are relying on regular testing as an option, noted Jesse Dill, an attorney with Ogletree Deakins in Milwaukee. But an employer may incur significant costs to provide regular testing, and monitoring can result in administrative headaches.

“With respect to a mandatory vaccination policy, it seems there would be little room for unpaid leave as an accommodation that the employer must provide,” Dill added. Leave is an accommodation of last resort. “There is not a certain end date to the pandemic, which makes a request for leave as an accommodation to a mandatory vaccination policy as seeking indefinite or long-term leave,” which the ADA doesn’t require.

In addition, COVID-19 long-haulers who claim they should have an accommodation because they have natural immunity due to already being infected may be out of luck. A claim of natural immunity does not seem likely to meet the definition of an ADA disability, Dill said.

DGRead 21.09.15

Be Prepared…Litigation is Often the Ultimate Reality; First Disability Accommodation Lawsuit; Understanding The Gender Dysphoria Legal Background; Award for Nina Ginsberg

4 Takeaways As EEOC Eyes Telework In The COVID Era

By: Anne Cullen

Law360 (September 9, 2021, 6:36 PM EDT) — The U.S. Equal Employment Opportunity Commission’s first disability accommodation lawsuit tied to the pandemic sheds light on how businesses can handle the ongoing surge in telework requests without violating anti-discrimination law, experts say.

In the lawsuit, which was filed Tuesday, the workplace bias watchdog said a Denmark-based facilities company illegally rejected a telework request from an employee whose lung disease put her at higher risk of severe complications from COVID-19.

The agency accused ISS Facility Services of violating the Americans with Disabilities Act when it refused to let former company health and safety manager Ronisha Moncrief work from home two days a week in mid-2020. Moncrief has obstructive lung disease, which places her at higher risk of complications from COVID-19, according to the agency’s complaint.

The case marks the first time the agency has taken a company to court over a pandemic-related request for an accommodation under the ADA, and experts say company leaders and their legal counsel should be following the proceedings closely.

“I think this is one that all employment lawyers should be watching to see how this all plays out,” said disability law expert Jonathan Mook of DiMuroGinsberg PC. “It may well end up as a template for litigating these kinds of cases.”

The lawsuit offers employers a blueprint for steering clear of disability discrimination as they continue to handle employees’ telework requests, experts said.

“This is one to watch because it will very likely — if it ends up making law, as opposed to being resolved early — set the stage for how far an employer may need to flex when it comes to work from home,” said Littler Mendelson PC shareholder Michelle Barrett Falconer, who co-chairs the firm’s leaves of absence and disability accommodation practice group. While the case is just getting started, here are four things employers can learn from the legal

Claims Over Denied Telework Abound
The allegations in the EEOC’s new lawsuit are not uncommon, and experts said the agency’s intervention in this space indicates that more suits with these types of claims will surface, both from the agency and private litigants.

“There’s going to be an avalanche of these types of cases as employers start bringing employees back to work physically at the worksite,” Mook said. Plus, he added, more claims will land in federal courts as they percolate through the EEOC’s administrative process from recall efforts that started last year.

His prediction is backed up by a recent survey from management-side firm Fisher Phillips, which found there’s been a general trend of increased litigation around the pandemic during the summer, with claims surrounding remote work and leave making up about a third of the total.

The firm also forecasted a steady increase in COVID-19 lawsuits filed by employees across the country. Mook said the litigation also makes clear that this is a space the agency is eyeing closely and
could crack down on.

“The EEOC is sending a signal that they’re serious about these cases, and they’re going to start taking a hard look at employers taking the position that employees who have disabling conditions no longer can continue working at home,” he said.

An EEOC spokesperson declined to comment on the allegations in the lawsuit or whether more similar suits were in the pike, but told Law360 on Thursday that “the COVID-19 pandemic is a health crisis with immense civil rights implications.”

“The economic fallout is disproportionately affecting vulnerable workers, including those with disabilities, and has serious workplace implications,” said agency spokesperson Christine Saah Nazer. “Employers must remain vigilant in ensuring that they maintain a discrimination-free workplace.”

If Recalling Workers, Have a Good Reason Employment lawyers said the lawsuit reminds businesses that they need to have a solid rationale for recalling their workers from a remote arrangement if their job doesn’t require them to be
physically on-site.

“It’s a good warning to employers to be careful about flat rules about requiring people to come back to the office,” said Constangy Brooks Smith & Prophete LLP partner Robin E. Shea. In the agency’s lawsuit, it argued that Moncrief had a legitimate basis to keep clocking in from home and had provided documents to ISS Facility Services supporting her reasoning.

She offered documentation to the company showing she needed the accommodation because her severe pulmonary disease placed her at a high-risk for contracting COVID-19, according to the lawsuit. When she was on-site, Moncrief often had close contact with colleagues, sometimes sharing a desk with co-workers, the agency said.

The agency also noted that working from home helped Moncrief manage her condition, but the company rejected her request to work from home two days a week. While ISS Facility Services has not yet responded to the lawsuit and did not respond to multiple requests for comment, experts said the case shows that it’s crucial company leaders have a solid defense for denying a disabled worker’s petition to telework.

“It does confirm what we’ve been saying all along, it’s going to be incredibly difficult for employers to justify no further telework,” said Littler’s Falconer. Calling workers back in because that’s how things used to be is not a good enough reason; company leaders should have a well-thought-out, documented rationale for why employees need
to return.

“They may have reasons,” Falconer said. “But the idea of, we just want everybody in the office, is not going to be an argument that will easily win the day.”

Consider Pandemic Experience in Analysis
The suit also serves as a reminder that company leaders who had everyone clock in from home at some point in the pandemic should take into consideration how their workers fared during this period when they evaluate requests to continue the arrangement, experts said.

The EEOC said in its lawsuit that Moncrief had worked from home four days per week after the U.S. first shut down due to COVID-19 in early 2020, but was later denied a similar, pared-down arrangement when the company sought to recall some of its workforce.

Two months after she asked to continue a partially remote arrangement, she was sacked for purported performance issues, according to the complaint, though the agency also noted that in the months leading up to her firing, Moncrief had performed well for the company, increasing employee training facilitywide.

The allegations may indicate that Moncrief had successfully completed her work during the initial telework period, something the agency has advised should be taken into consideration when evaluating continued remote work requests.

Guidance the EEOC put out a year ago said pandemic telework experiences can serve as a “trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely,” and companies “should consider any new requests in light of this information.”

DiMuroGinsberg’s Mook said this week’s lawsuit indicates that the agency wants employers to heed this advice.

“The signal they’re sending is employers need to be careful,” he said. “It isn’t the old way of operating in terms of telework as a reasonable accommodation.”

Back to Basics
However, despite the use of potential new factors in the calculus, Jackson Lewis PC principal Jenifer Bologna said this case makes clear to her that company leaders need to ensure they’re handling reasonable accommodation requests following the traditional, fact-specific process.

“Employers should be evaluating claims the way they would any other request for a reasonable accommodation under the ADA, and I think that’s really the important takeaway,” said Bologna, who specializes in disability and leave management issues.

“When it comes to requests for accommodations, the standard rules apply,” she said. The agency’s longstanding guidance on evaluating an accommodation request starts with a discussion on the nature of a worker’s disability and how it limits their ability to do their job.

The EEOC’s running bulletin on best practices for companies balancing pandemic issues with the needs of disabled workers reiterates the standard rules. In it, the agency has laid out a list of discussion items that employers should run through with an employee when evaluating the viability of a remote work arrangement.

It’s important to understand how the worker’s disability limits their ability to come into the office, how telework could help the problem, whether another arrangement could be the solution and if the worker can get their fundamental job duties done while at home, according to the agency’s guidance.

Bologna said employers need to make sure their conversations follow this blueprint. “Each situation is different, but it’s truly back to basics,” she said. “There is so much new with COVID, so many new concepts, but this is a circle back to our traditional accommodation process.”

— Additional reporting by Amanda Ottaway. Editing by Abbie Sarfo.

Understanding The Gender Dysphoria Legal Battleground

By: Anne Cullen

Law360 (July 12, 2021, 6:49 PM EDT) — Despite some major carveouts in the Americans with Disabilities Act surrounding transgender individuals, federal district courts are increasingly endorsing the claim that gender dysphoria merits protections under the federal anti-discrimination law.

Medical research makes clear that the condition can be severely disabling, as the American Psychiatric Association defines gender dysphoria as clinically significant distress or impairment related to a strong desire to be of another gender, and says it can interfere with someone’s social life, their ability to do their job as well as other important daily functions.

However, part of the ADA that hasn’t been touched since it was written three decades ago makes clear that “transvestism,” “transsexualism,” and “gender identity disorders not resulting from physical impairments” do not qualify as disabilities.

These “conditions” are lumped among a crop of others that lawmakers said don’t make the cut, including pedophilia, exhibitionism, voyeurism, compulsive gambling, kleptomania, and pyromania.

While some attorneys say the outdated section of the law gives transgender individuals a steep hill to climb when they want to bring a gender dysphoria bias claim in court, many courts that have actually grappled with this question cleared these allegations to move ahead.

“There’s overwhelming support by courts for coverage of gender dysphoria under the ADA and the Rehab Act,” said Quinnipiac University associate dean and disability law professor Kevin M. Barry, who has penned academic papers and court filings on the issue.

Case law does appear to be trending in one direction, but this area of law is still unsettled; a Law360 analysis found that federal district courts have issued fewer than two dozen decisions on the issue — primarily in prisoners’ rights cases — and the question has not yet been tackled by an appeals court.

The issue will continue to crop up, experts predict, potentially forcing courts to solidify the legal landscape one way or the other.

“It’s certainly an emerging issue under the ADA that I think practitioners are going to be confronting in the future,” said disability law expert Jonathan Mook of DiMuroGinsberg PC. Here Law360 takes a look at where the law stands when it comes to the status of gender dysphoria under the ADA and its federal sector counterpart, the Rehabilitation Act.

Seminal Blatt Case Makes Waves
While the law specifically excludes certain “gender identity disorders,” a Pennsylvania federal judge created a stir in 2017 when he declared that gender dysphoria sits outside that category.

The decision, Blatt v. Cabela’s Retail Inc. , marked the first time a court said gender dysphoria could be a disability under the ADA. U.S. District Judge Joseph F. Leeson Jr. said gender identity disorder narrowly refers to the condition of identifying with a different gender, not the disabling conditions, like gender dysphoria, that might come along with it.

Judge Leeson cleared employment discrimination allegations against sports retailer Cabela’s to move ahead in May 2017, and the case settled shortly after. Quinnipiac University’s Barry, who represented a handful of LGBTQ advocacy organizations that chimed into the case to argue gender dysphoria qualifies as a disability, told Law360 this was the right call.

“The Blatt court said that when the ADA excluded gender identity disorder, what Congress was really excluding was trans identity, and trans identity is not a disability,” he said. “That is true.”

However, other experts aren’t so sure.

Constangy Brooks Smith & Prophete LLP partner Robin E. Shea, who counsels employers, said there’s a strong argument that specific exclusions in the ADA encompass gender dysphoria.

Shea told Law360 that the Blatt case may have gotten it wrong when they decided otherwise. “I think they might have stretched [the ADA] with that decision,” Shea said.

Physical Impairment Theory Wins Court Favor
Though Judge Leeson’s take was the first on the issue, his theory isn’t the one that has taken center stage in the legal battles that have followed.

In the years since the Blatt decision, many of his peers on the federal bench who have concluded gender dysphoria might be a disability under the ADA made their finding based on the statute’s language surrounding “physical impairments.”

Because the law says “gender identity disorders not resulting from physical impairments” do not qualify, a handful of federal courts have found that when someone makes a claim that their gender dysphoria did stem from a physical cause, their condition may merit ADA protection.

Federal courts in Massachusetts, Idaho, Illinois, Florida, and Georgia have all cleared ADA claims relating to gender dysphoria to move ahead based on this theory.

“The piece that a lot of courts are struggling with is this carveout that the ADA contains for gender identity disorders,” said Eckert Seamans member Lindsey Conrad Kennedy, who advises employers. “As we’ve seen pretty recently, courts and plaintiffs are finding ways to get around this carveout.”

U.S. District Judge Richard G. Stearns in Massachusetts was one of the first to take this stance three years ago in a legal battle lodged by a transgender inmate who sued under the pseudonym Jane Doe.

Judge Stearns pointed out in his mid-2018 decision in Doe v. Massachusetts Department ofCorrection that a growing body of medical research shows that gender dysphoria may come from hormonal and genetic drivers.

He ruled that “the continuing re-evaluation of GD underway in the relevant sectors of the medical community is sufficient, for present purposes, to raise a dispute of fact as to whether Doe’s GD falls outside the ADA’s exclusion of gender identity-based disorders as they were understood by Congress 28 years ago.”

A handful of courts have made similar findings in the years following. In Georgia federal court late last year, a federal judge ruled in Lange v. Houston County , Georgia, that a deputy sheriff with gender dysphoria could move ahead with her claim against the county because she had clearly alleged that the condition stems from a physical impairment.

While the county insisted that the employee, Anna Lange, hadn’t shown her specific condition was rooted in any physical cause, U.S. District Judge Marc T. Treadwell said she didn’t need to make this showing to defeat the county’s dismissal bid.

“As a matter of pleading, Lange clearly alleges that she has a condition that results from physical impairment,” Judge Treadwell said. “Because she has alleged that, the court cannot conclude as a matter of law that the statutory exclusion of ‘gender identity disorders’ applies.”

That case is now in the midst of discovery.

And just last month, in Pennsylvania federal court, U.S. District Judge Karen S. Marston cleared an ADA claim against the Hospital of University of Pennsylvania to move ahead on similar lines, citing the Lange decision.

Save for some cases in which a plaintiff — usually those lacking legal counsel — didn’t quite make the “physical impairment” argument clearly and strongly enough, Quinnipiac University’s Barry said courts have nearly universally shown they’re on board with this angle.

“Almost every court that has addressed that issue has accepted that theory of coverage,” Quinnipiac University’s Barry said. “That is the theory that courts are saying is a path by which gender dysphoria finds coverage under the ADA and Rehab Act.”

The federal government has thrown its weight behind this theory too. In a handful of briefs filed in employment, prisoner rights and other civil rights cases over gender dysphoria since 2015, the Department of Justice under both the Obama and Trump administrations interpreted the ADA to cover gender dysphoria because it said the condition may have physical roots.

“While no clear scientific consensus appears to exist regarding the specific origins of genderdysphoria (i.e., whether it can be traced to neurological, genetic or hormonal sources), the current research increasingly indicates that gender dysphoria has physiological or biological roots,” the Justice Department argued in the Blatt case in 2015.

The Justice Department again made the same argument under the Trump administration twoyears later, insisting in a transgender woman’s case over New Jersey’s birth certificate rules that her gender dysphoria counts as a disability because she had plausibly alleged it stemmed from a physical impairment.

Some Gender Dysphoria Bias Claims Shot Down
On the other side of things, courts in Ohio, Alabama and Virginia have rejected some individuals’ claims that their gender dysphoria is protected by the anti-discrimination law, though none of these courts undermined the physical impairment theory.

U.S. District Judge George C. Smith in Ohio primarily took aim at the Blatt decision when he threw out construction worker Tracy Parker’s allegation of disability discrimination based on her gender dysphoria. The judge ruled in 2018 that he can find “no support, textual or otherwise” for the interpretation set out in Blatt.

“The clear result is that Congress intended to exclude from the ADA’s protection both disabling and nondisabling gender identity disorders that do not result from a physical impairment,” he said.

Parker couldn’t move ahead on the physical impairment theory because she’d left that argument out of her complaint, Judge Smith said. While Parker had cited medical research in follow-up filings, Judge Smith said he can’t consider evidence lodged outside her complaint.

In 2019 in Alabama, a federal judge said in a workplace bias case against Northrop Grumman that the terms “gender identity disorder” and “gender dysphoria” are legally synonymous — also countering the Blatt decision — and that there was no physical impairment behind the Northrop Grumman employee’s condition to trigger the ADA.

“A condition of ‘gender dysphoria’ (formerly described as a ‘gender identity disorder’) that does not result from a physical impairment is expressly excluded from the definition of disabilities covered by the Americans with Disabilities Act,” U.S. District Judge C. Lynwood Smith said.

Just last month, a transgender woman who was incarcerated in Virginia wasn’t able to convince a federal judge that her gender dysphoria counted as a disability because she hadn’t made the physical impairment argument either.

“There’s been a new and increasing number of decisions on this topic and courts have really come out in all different directions,” Eckert Seamans’ Kennedy said.

Bostock’s Impact On Gender Dysphoria Case Law
While experts agree this question will crop up more often in the courts, they say the rate at which cases are filed could be affected by how broadly the government and the courts interpret the U.S. Supreme Court’s landmark LBGTQ rights decision in Bostock v. Clayton County.

In the watershed ruling, the justices made clear that Title VII, the federal law barring discrimination in the workplace, bans bias on the basis of gender identity and sexual orientation.

Because transgender workers now have more protections under federal law, DiMuroGinsberg’s Mook said it’s possible that those who suffer from gender dysphoria may choose to sue only under Title VII and forego their ADA claim, potentially leading to a drop-off in the employment-related cases surrounding gender dysphoria.

“Some of the ADA litigation is really going to depend upon how broadly the Title VII protections are interpreted for transgender individuals, the narrower those protections are interpreted to be, litigation under the ADA would be more prominent,” DiMuroGinsberg’s Mook said.

At the moment, the U.S. Equal Employment Opportunity Commission has given Bostock a wide reach, making clear in guidance rolled out this summer that employers must accommodate their LBGTQ employees when it comes to dress codes, pronouns, bathrooms and other issues.

However, this doesn’t mean these claims aren’t still going to bubble up. Earlier this month, a former associate professor at Pennsylvania State University hit the institution with a discrimination lawsuit claiming they were denied tenure because they’re transgender and the school violated the ADA by not accommodating their gender dysphoria.
“I do think we will see more disability claims in the gender dysphoria claims across the board,” said Quinnipiac University’s Barry.

–Additional reporting by Adam Lidgett, Amanda Ottaway, Vin Gurrieri and Braden Campbell. Editing by Vincent Sherry.

DGRead 21.09.01

Preventing the Spread; Rocket Docket Update; Nina Ginsberg – Lawyer of the Year; COVID-19 Virus Long-Haulers Almost Certain to Find Protection from the ADA; DG/30 Milestone

ADA Protections All But Certain For Virus Long- Haulers

By: Jonathan R. Mook

As the COVID-19 pandemic continues to wreak havoc across the U.S., especially with the prevalence of the delta variant, an increasing number of individuals still are suffering the long-term health effects of the virus even though they may have initially been infected months ago.[1]

According to the Centers for Disease Control and Prevention, “long COVID” is defined as “new or ongoing symptoms that can last weeks or months after first being infected with the virus that causes COVID-19.”[2]

The precise manner in which infection with the COVID-19 virus can cause such lingering health problems is not precisely known. The relationship between COVID-19 infection and continued negative health effects, however, is becoming increasingly well documented as the impact of long-haul COVID-19 continues to affect individuals in their daily lives both at home and at work.[3]

Indeed, the U.S. Department of Justice has termed “the rise of long COVID as a persistent and significant health issue.”[4]

Legal Implications of Long-Haul COVID-19
The legal implications stemming from the rise of long-haul COVID-19 are now just coming to the fore, especially in terms of whether long-haulers may qualify for protections under the Americans with Disabilities Act.

A few courts have considered whether infection with the COVID-19 virus, in and of itself, is an ADA disability, and in their rulings have held that it is not.[5]

As U.S. District Judge Tilman E. Self of the U.S. District Court for the Middle District of Georgia pointed out in his May decision in Champion v. Mannington Mills Inc., being required to miss work for a number of days or having to quarantine due to a COVID-19 positive test is not sufficient for coverage under the law. If that were the case, Judge Self observed, “employers across the nation will be shocked to learn that if any of their employees are sick for just a few days, then those employees are ‘disabled’ and now protected by the ADA.”[6]

Importantly, in their dismissal decisions, the courts have recognized that their rulings do not necessarily mean that COVID-19 infection never can rise to the level of an ADA-protected disability — leaving open the distinct possibility that long-haul COVID-19 could qualify for ADA protection.

Biden Administration’s Pronouncements
The U.S. Equal Employment Opportunity Commission, which enforces the employment provisions of the ADA, has not specifically opined on the issue, but reportedly is considering the matter.[7]

Not willing to wait for a pronouncement from the commission, the Biden administration recently decided to move forward to address the protections afforded to those suffering from long-haul COVID-19 under the country’s disability laws.

On July 26, at the ceremony in the Rose Garden marking the 31st anniversary of the ADA, President Joe Biden made clear that those persons suffering from the effects of long-haul COVID-19 may be entitled to the protections of the statute.

As Biden explained, “many Americans who seemingly recover from the virus still face lingering challenges like breathing problems, brain fog, chronic pain, and fatigue. These conditions can sometimes … rise to the level of a disability.”[8]

Thus, Biden stated that his administration was bringing [federal] agencies together to make sure Americans with long COVID, who have a disability, have access to the rights and resources that are due under the disability law, which includes accommodations and services in the workplace, in school, and our healthcare system so they can live their lives in dignity and get the support they need as they continue to navigate these challenges.[9]

In accordance with Biden’s declaration, both the DOJ and the U.S. Department of Health and Human Services released joint guidance, which explains when infection with COVID-19, and in particular, long-haul COVID-19, may rise to the level of an ADA disability.[10]

In conformity with the analysis of disability under the ADA, Biden in his remarks, and the DOJ and HHS in their joint guidance, emphasized that not every person who suffers from long-haul COVID-19 necessarily will be covered by the ADA; an individualized assessment must be made. Nonetheless, the joint guidance points out that coverage may be found where the infection substantially limits one or more of the person’s major life activities.

These activities can include working, performing manual tasks, sleeping, eating, breathing, concentrating and communicating — many of which are activities in which individuals who suffer from long-haul COVID-19 experience significant difficulties.[11]

Given Biden’s statements about the need to support persons suffering from long-haul COVID-19 and the concerted effort of the DOJ and HHS in issuing their joint guidance, the clear message from the Biden administration is that coverage under the ADA will likely be found for persons experiencing significant health effects due to long-haul COVID-19.[12]

What Will the EEOC Say?
Even though the EEOC did not join the Biden administration’s initiative to emphasize the legal protections for employees suffering from long-haul COVID-19, there can be little doubt that the commission, even though ostensibly an independent agency, will soon be on board.

In passing the Americans with Disabilities Act Amendments Act of 2008, Congress made clear that the definitions under the various federal civil rights laws protecting individuals with disabilities are to operate under one constant standard for the definition of “disability” so that “the civil rights of individuals with disabilities will be protected in all settings.”[13]

Thus, the DOJ’s regulations interpreting those sections of the ADA that it enforces — Title II, which prohibits disability discrimination by state and local governments, and Title III, which prohibits disability discrimination by public accommodations and commercial facilities — mirror the definition of “disability” adopted by the EEOC.[14]

The definition of “disability” under Section 504 of the Rehabilitation Act, which also is enforced by the DOJ and HHS (as well as other federal agencies), likewise, is consistent with that under the ADA.[15]

Employers, therefore, are well advised to carefully review the DOJ and HHS joint guidance on the ADA coverage of long-haul COVID-19 for an understanding of how the EEOC and the courts will address the issue under the employment provisions of the ADA.

To have an actual ADA disability, an individual must have a physical or mental impairment that substantially limits a major life activity. The joint guidance makes clear that long-haul COVID-19 is a physical or mental impairment since it is a “physiological condition affecting one or more body systems.”

According to the guidance, long-haul COVID-19 also affects major life activities, with the potential to experience lung, heart and kidney damage, damage to neurological and circulatory systems, and “lingering emotional illness and other mental health conditions.”[16]

Finally, the joint guidance provides examples of where persons with long-haul COVID-19 can be substantially limited in one or more of their major life activities, and hence, disabled under the statute. These include situations where long-haul COVID-19 has resulted in:

  • Lung damage that causes shortness of breath, fatigue and related effects, which substantially limits a person’s respiratory function;
  • Intestinal pain, vomiting and nausea for months, which substantially limits the individual’s gastrointestinal function; and
  • Memory lapses and brain fog, which substantially limits brain function, concentrating and/or thinking.[17]

There undoubtedly are many more health-related consequences of long-haul COVID-19 that will substantially limit a person’s major life activities and rise to the level of an ADA disability. Accordingly, in the coming months (and years) there is little doubt that the rise of long-haul COVID-19 and its consequences for employees and employers alike will have a substantial impact on the development of ADA law and policy.

Avoiding ADA Liability
Even as the COVID-19 pandemic hopefully starts to wane, the long-lasting effects of persons suffering from long-haul COVID-19 will remain.

As a consequence, Assistant Attorney General for Civil Rights Kristen Clarke has promised that the federal government will vigorously enforce the ADA and other federal rights laws to ensure that as the nation responds to, and recovers from, COVID-19 … those with disabilities are full and equal partners in that recovery.

And there is no reason not to take the assistant attorney general at her word.[18]

Accordingly, all employers need to be attuned to their legal obligations with respect to their employees who are experiencing the symptoms of long-haul COVID-19 and to make sure that they have established procedures to engage the employees in an interactive dialogue to determine what, if any, accommodations they may need in order to perform their jobs.

Failure to do so can only entail being the subject of an EEOC charge or a lawsuit, and potentially years of costly litigation — a prospect no employer wishes to contemplate.

Obligations” and “ADA: Public Accommodations and Commercial Facilities.”

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] According to the Department of Justice, “some people continue to experience symptoms that can last weeks or months after first developing COVID-19.” Importantly, “this can happen to anyone who has had COVID-19, even if the initial illness was mild.” See Department of Justice, Office of Public Affairs, DOJ and HHS Issue Guidance on ‘Long COVID’ and Disability Rights Under the ADA, Section 504, and Section 1557, July 26, 2021, available at https://www.justice.gov/opa/pr/doj-and-hhs-issue-guidance-long-covid-and-disability-rights-under-ada-section-504-andsection. (“DOJ and HHS Issue Guidance”).

[2] See Centers for Disease Control and Prevention, Post-COVID Conditions, available at www.cdc.gov/coronavirus/2019-ncov/long-term-effects.html. Some persons experiencing long COVID also can sustain damage to multiple organs including the heart, lungs, kidney, skin and brain. Id.

[3] A February, 2021study published in JAMA Network Open found that approximately 30 percent of COVID-19 patients reported persistent symptoms as long as nine months following their illness. Sequelae in Adults at 6 Months After COVID-19 Infection. JAMA Network Open.

2021;4(2):e210830-e210830. doi:10.1001/jamanetworkopen.2021.0830. More recent reports confirm that COVID-19 may have lingering effects that cause fatigue, shortness of breath, difficulty sleeping, fevers, gastrointestinal issues, anxiety and depression, and what has been termed “brain fog.” See Assessment of the Frequency and Variety of Persistent Symptoms Among Patients with COVID-19; A Systematic Review, JAMA Network Open, 2021;4(5):e2111417. doi:10.1001/jamanetworkopen.2021.11417; Assessment of Prolonged Physiological and Behavioral Changes Associated with COVID-19 Infection, JAMA Network Open.

2021;4(7):e2115959. doi:10.1001/jamanetworkopen.2021.15959; Long COVID: Tackling a Multifaceted Condition Requires a Multidisciplinary Approach. Lancet Infect Dis.

2021;21(5):601-602. doi:10.1016/S1473-3099(21)00043-8; Self-Reported Memory Problems 8 Months After COVID-19 Infection, JAMA Network Open. 2021;4(7):e2118717. doi:10.1001/jamanetworkopen.2021.18717.

[4] U.S. Department of Health Human Services and U.S. Department of Justice, Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557, July 26, 2021, available at https://www.ada.gov/long_covid_joint_guidance.pdf (“Joint Guidance”).

[5] See Champion v. Mannington Mills, Inc ., 2021 U.S. District LEXIS 89381 (M.D. Ga. May 10, 2021); Payne v. Wood Servs, 2021 U.S. Dist. LEXIS 28198 (E.D. Pa. Feb. 16, 2021).

[6] Champion, 2021 U.S. District LEXIS 89381, *11.

[7] Anne Cullen, Biden Says Long-Haul COVID Can Be A Disability, Employment Authority –
Discrimination, available at https://www.law360.com/employment-authority/articles/1406785

[8] Remarks by President Biden Celebrating the 31st Anniversary of the Americans with Disabilities Act, available at https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/07/26/remarks-by-president-biden-celebrating-the-31st-anniversary-of-the-americanswith-disabilities-act/.

[9] Id.

[10] Joint Guidance, at 2-3. Federal civil rights laws define a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual (“actual disability”); a person with a record of such an impairment (“record of”); or a person who is regarded as having a physical or mental impairment (“regarded as”). See, e.g., 42 U.S.C. § 12102(1); 29 U.S.C. § 705(9)(B), (20)(B); 28 C.F.R. §§ 35.108, 36.105; 45 C.F.R. § 92.102(c). The Joint Guidance addresses only the “actual disability” prong of the disability definition.

[11] See Joint Guidance at 3; Assessment of the Frequency and Variety of Persistent Symptoms Among Patients With COVID-19 – A Systematic Review, JAMA Network Open;

2021;4(5):e2111417. doi:10.1001/jamanetworkopen.2021.11417.

[12] The U.S. Department of Labor also has launched a new webpage which contains information on how persons can request workplace accommodations under federal disability law for long COVID-19. The website also includes resources for workers with long COVID, such as information on employee benefits. See https://www.dol.gov/agencies/odep/topics/coronavirus-covid-19-longcovid.

[13] 154 Congressional Record S8843 (daily ed. Sept. 16, 2008) (Statement of Managers – S.3406). See also H Rep. No. 110-730, Pt. 1 at 7 (“conforming amendments . . . are intended to ensure harmony between the federal civil rights laws”).

[14] Compare 36 C.F.R. § 36.104 (Title III) and 28 C.F.R. § 35.104 (Title II) with 29 C.F.R. §
1630.2 (Title I).

[15] See 29 U.S.C. § 705(9)(B).
[16] See Joint Guidance at 3.
[17] Id., at p. 4.
[18] DOJ and HHS Issue Guidance, supra.

Reassigning Disabled Employee to Another Job May Violate the ADA

By: Jonathan R. Mook

If a disabled employee cannot be reasonably accommodated in his or her current job, the Americans with Disabilities Act (“ADA”) requires an employer to consider reassigning the employee to a vacant position that the employee is qualified to perform. Importantly, however, reassignment is not a preferred accommodation under the statute. As the Fourth Circuit Court of Appeals recently emphasized in Wirtes v. City of Newport News, C.A. No. 19-780, reassignment should be considered only when accommodation within the individual’s current position would pose an undue hardship.”

The Facts
Michael Steven Wirtes served as a police officer with the City of Newport News when he developed permanent nerve damage due to wearing a heavy, full duty belt which supported pepper spray, a gun with ammunition, a taser, a baton, handcuffs, a flashlight, a radio, and body camera battery pack. Wirtes asked the City for reassignment to a unit that would allow him to continue serving as a police officer without the need to wear a full duty belt. For a time, the City obliged.

That changed, however, when the City amended its job description for police officers to require all police officers to wear a standard issued full duty belt with all applicable gear. When Wirtes confirmed that he could not wear the standard full duty belt, the City offered him a choice between accepting a civilian job as a logistics manager or choosing to retire. Although Wirtes initially chose the civilian job, but soon thereafter, he retired, claiming he was “forced under medical reasons.”

Wirtes’ ADA Suit
Subsequently, Wirtes filed suit against the City in the Newport News Division of the Eastern District of Virginia, claiming that the City had violated the ADA by failing to accommodate his disability. The district court, however, dismissed Wirtes’ suit, reasoning that the City had fulfilled its ADA obligations by offering him the logistics job.

Wirtes appealed the dismissal of his case to the Fourth Circuit, which reversed the lower court and reinstated his lawsuit. In an opinion written by Circuit Judge James A. Wynn, Jr., the appeals court explained that reassignment to a vacant position was an accommodation of last resort and that the City had failed to prove that it could not have accommodated Wirtes in his police officer job by allowing him to wear a shoulder holster or exempting him from police assignments requiring a full duty belt.

In reaching this conclusion, Judge Wynn pointed to the EEOC’s Enforcement Guidance on Reasonable Accommodation, which advises that “[b]efore considering reassignment as a reasonable accommodation, employers should first consider those accommodations that would enable an employee to remain in his/her current position.” Moreover, Judge Wynn opined that the “core values” of the ADA support treating reassignment as a “last among equals” of possible reasonable accommodations because employers should attempt to assist employees in doing “their present job rather than ‘hurl[ing] [them] into an unfamiliar position.’”

Bottom Line
The Fourth Circuit’s decision in Wirtes emphasizes that the ADA’s reasonable accommodation requirements are meant to enable a disabled employee to perform the essential functions of that employee’s current job, if at all possible. Thus, in most cases, an employer likely will be judged to have violated the statute when it unilaterally reassigns a disabled employee to a vacant position instead of reasonably accommodating the individual in his/her current position.

To comply with your ADA obligations, therefore, you should engage in the interactive reasonable accommodation process in a full and complete fashion and carefully and thoroughly consider whether reasonable accommodations exist to keep a disabled worker in his or her current position. Only after the search for a viable accommodation has been exhausted should you consider offering an employee the “last resort” alternative of reassignment.

DGRead 21.08.15

Reassigning Disabled Employee to Another Job May Violate the ADA; Rocket Docket Update; What If a Job Applicant Discloses a Disability?; DG/30 Milestone