Employment Discrimination Claims: 2022 Update on Telework Accommodations, Long-Haul COVID, Mandate Class Actions

Description

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 ADA and its state and local counterparts.

Before COVID-19, there was litigation over whether telework is a reasonable accommodation for employees with ADA-covered disabilities. Employers argued that physical presence at the worksite was an essential job function, and some courts were receptive. But the coronavirus pandemic has changed how and where many Americans work. Now, if employers refuse such requests, employees with disabilities may bring legal claims relying on ADA protection in support of their requests to continue working from home.

The EEOC has 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. In at least one case, a 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.

Court rulings to date confirm that employers can lawfully mandate vaccines, as long as they provide exemptions for approved reasons of religion and disability. There are already active litigations challenging the Occupational Safety and Health Administration's authority to issue the Emergency Temporary Standard or its interplay with certain state and local laws prohibiting mandates. While disability cases often involve single plaintiffs, mandates and exemption policies apply to the broader workforce, making employers enforcing vaccine mandates 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 claims.

Listen as our expert panel discusses the trends in ADA discrimination cases that employers are likely to face in 2022. The panel will address best practices that employers should consider when revising employment policies in 2022 and beyond.