School administrators all over the country continue to cave in to political pressure to conduct in person classes in their school buildings. This has spawned objections and protests by teachers, parents and others, likewise all over the country. These boneheaded policies are undeniably dangerous to all of the teachers, staff, students and parents involved. But the danger of teaching indoors is even greater for people with health conditions that place them at higher risk from the pandemic. Fortunately, the Americans with Disabilities Act of 1990 (ADA) may afford these people with significant legal rights, enforceable by the Equal Employment Opportunity Commission and Federal Courts.
To be sure, after nearly a full term, Donald Trump’s mischief has quite sabotaged the E.E.O.C. and its mission, while, with the connivance of Senator Mitch McConnell (R, KY), the GOP has packed the Federal Courts with myriad terrible and unfit judges. But they haven’t yet managed to repeal the ADA law, which had nearly unanimous, bipartisan support when it passed in 1990, nor have they torn down the procedural framework for enforcement.
DISCLAIMER — IANAL. But, before I retired, I was a lawyer for many decades. For most of the last two of those, about two thirds of my practice was trying cases to E.E.O.C. Administrative Judges. Almost half of those involved issues covered by the ADA. This post is based upon public information that no one should take as legal advice. Anyone with the slightest interest in advice about their rights ought to immediately consult a practitioner of employment and labor law or other licensed attorney.
It was talking with a close family member, a teacher working in a private school, that focused my thoughts on this subject. This person has a chronic medical condition of which the school is unaware, because the disorder is treated and well controlled with prescription medication. The condition threatens severe, disabling and even deadly outcomes if untreated.
None of this had any significance for this teacher’s job, before Covid-19 came along. But the medication, that keeps the problematic medical condition under control, also suppresses he patient’s immune system. This causes much higher risk for this teacher, both of contracting the virus and suffering a worse than average outcome, if exposed to Covid-19.
Meanwhile, the school has begun a phased reopening of in-classroom instruction, that will eventually compel all of the teachers into enclosed, indoor classrooms with students. Until that happens, the teacher will continue teaching all students remotely, just as has gone on, entirely successfully, since Spring Break last term and has continued for over a month this term. I have been assisting this teacher in finding an employment law attorney locally, and, tomorrow, the school will receive the teacher’s request, to be permitted to continue teaching remotely, as a reasonable accommodation under the ADA.
It’s easy to imagine this fact pattern repeated all over the country. None of this is exclusive to teachers, either. Political pressure for reopening has afflicted workplaces all over the country, with employees who have worked remotely with success finding themselves ordered into indoor settings with exposure to the virus, which may be reduced, but cannot be eliminated by precautions. The facts also supply a framework for describing how the somewhat unusual and complex ADA enforcement process works.
Under the facts, the teacher in question has become, under the ADA, an employee with a medical condition that substantially limits one or more major life activities, who needs a reasonable accommodation in order to fully perform all the core functions of the job, from an employer having 15 or more employees. Once the teacher informs the school of the medical condition and requests a reasonable accommodation, the school becomes obligated to conduct an interactive process with the teacher to explore the problem and the necessities involved.
The accommodation request must enable the teacher to fulfill all the core functions of the job and cannot impose an undue hardship on the employer. Also, the employer may seek and obtain medical information from the employee, to confirm the existence of the condition necessitating the accommodation. But, the employer cannot retaliate against an employee for making a reasonable accommodation request, even if the request is unwarranted.
Under our facts, prolonged indoor exposure to groups of people constitutes the daily living activity limited by the medical condition, and the record, from months of successful remote teaching, demonstrates the ability to fully perform the job while simultaneously ruling out undue hardship to the school. So, the request for accommodation definitely has potential merit.
If the school denies accommodation, the teacher must file a complaint with the E.E.O.C. within 300 days. The Commission will try to reconcile the case and, if unsuccessful, will issue a right to sue letter that allows the employee to sue in the U.S. District Court.
Enforcing rights under the ADA can lead to gruesome choices, such as whether to quit a job because accommodation is denied. But employers, who reject their employees’ reasonable accommodation requests, face gruesome perils of their own, because the ADA has real teeth in the hands of a capable attorney.
To all teachers everywhere in America, from a former teacher, I am so sorry that our country has failed you so miserably and is now preparing to treat you even still worse. I leave everyone with these encouraging thoughts from the immortal Peter Tosh —