The U.S. Equal Employment Opportunity Commission (EEOC) has received thousands of claims related to the COVID-19 pandemic. The majority of these claims are related to disability discrimination and accommodations. There also has been a surge of claims related to employer-mandated vaccines. Since the beginning of the pandemic through the end of 2021, the EEOC received roughly 6,000 COVID-19 related charges. Additionally, more than 2,700 vaccine-related charges were received, most of which were in 2021 when vaccines became widely available.
Americans with Disabilities Act charges
Over 60% of the COVID-19-related charges alleged Americans with Disabilities Act (ADA) violations. These charges cite denials of telework
accommodations, terminations and other adverse actions against those who contracted COVID-19. The EEOC has brought at least three lawsuits related to disability bias. One suit related to denial of telework accommodations. The other two suits alleged that an employer discriminated against those with disabilities and deemed them to be more vulnerable to serious illness if they were to contract COVID-19.
In previously issued guidance, the EEOC explained that not every person who contracts COVID-19 will qualify as disabled. In these situations, COVID-19 and any long-haul effects should be considered under the ADA’s three definitions of a disability:
- physical or mental impairments that substantially limit a major life activity;
- an employer’s perception that a worker has a disability; and
- the worker’s record of impairment.
For more information, see our previous post on navigating the interactive process required in the ADA.
It is likely that once the EEOC makes determinations on these charges, courts will see an increase in COVID-19 related litigation. Suits may invoke questions regarding how to treat those who are symptomatic versus asymptomatic. There also likely will be decisions on what is considered a reasonable accommodation.
As employers navigate the disability requests, the “direct threat” defense is available if the worker poses a threat to health and safety of employees. What is deemed a direct threat may vary depending on safety measures, vaccine requirements and what accommodations are possible. Accommodations related to long-haul COVID-19 also will present a hurdle for employers to navigate.