Since the pandemic disrupted U.S. life in March 2020, the number of Americans who have worked remotely, at least in part, has more than doubled. After over a year of proof that telework is possible, workers have gained fodder for legal arguments that remote work is a reasonable accommodation for their disabilities without undue burdens for employers. As vaccines have become more accessible and COVID-19 rates began to drop, more and more workplaces started preparing for and implementing return-to-office arrangements.
Yet the infectiousness and severity of COVID-19 continue to raise concerns about the implications of working closely with unvaccinated colleagues, especially in light of the Delta variant and breakthrough infections. While most current disability laws mandate employers to provide reasonable COVID-related accommodations to employees with disabilities, employers are not expressly required to grant reasonable accommodations to protect employees’ household members who are predisposed to complications from COVID-19. Untold numbers of Americans presently face this predicament, which has especially heightened stakes for individuals for whom the vaccine is inadequate, such as those who are immunocompromised.
Nevertheless, employees returning to less-than-fully-vaccinated workplaces seeking to protect their vulnerable loved ones may not be without options. While each person’s situation will differ, this week—which marks the 31st anniversary of the Americans with Disabilities Act (ADA)—we offer five considerations as you navigate this challenging employment dilemma.
1. Engage with Your Employer
While some courts have understood certain state laws to require accommodating the disabilities of employees’ relatives, we have found that even employers who may not be required to grant accommodations are nevertheless amenable to doing so. Workers who explain their home situations may find employers willing to negotiate arrangements amenable to all involved. An accommodation could be continued telework, but it need not be; for example, you could seek a private office, an exemption from group meetings, and/or the institution of office masking requirements. And you can remind your employer that federal law permits workplaces to mandate FDA-approved vaccinations, subject to compliance with other civil rights laws.
While employers may point to EEOC guidance indicating that the ADA does not require them to grant accommodations for “the disability‑related needs of [an employee’s] family member or another person with whom she is associated,” simply because the legal floor does not require accommodations does not mean employees cannot ask for them. Employers may well be open to compromise, and it may be worth asking about the feasibility of a range of accommodations.
2. Take Time Off
Most workers are entitled to some degree of time off to care for loved ones. For example, the federal Family Medical Leave Act (FMLA) offers unpaid caregiver leave. Residents of some states are additionally entitled to some form of paid caregiver leave. However, it is important to remember that leave—lasting no longer than a number of weeks—presents only a short-term band‑aid rather than a long-term solution.
3. Advocate for Adopting New Understandings and Policies
When our legislatures enacted civil rights laws, few contemplated a global, multi-year contagion that could impact the world quite like this novel coronavirus. The pandemic has had a lasting impact on how we live and work; employment laws must adapt accordingly. Disability rights attorneys should pursue litigation that tests the limits of the legislation we have. Congress, states, and localities can and should fill the gaps in existing legislation and affirmatively provide a right to reasonable accommodations for household members with disabilities. Public pressure through advocacy at all levels of government can make great strides towards achieving this legislative goal.
4. Know You Are Protected from Disparate Treatment
While your employer may not be legally required to grant your requested accommodation, employers are nevertheless prohibited from treating you differently because of your association with a person who has a disability or because you made a reasonable request. The ADA prohibits disparate treatment and harassment based on an employee’s association with a person who has a disability, as do numerous state laws. And the ADA provides protections against retaliation. “Though the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a disabled person, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination.”
Many courts have interpreted the ADA to require that an individual must suffer an adverse employment action, such as termination, promotion denial, or constructive discharge (which occurs when a reasonable employee would feel forced to resign) because of their relationship with someone who has a disability.
And the text of the statute could be understood to confer even broader civil rights protections. You may, for instance, have an arguable legal claim if your boss provides benefits to your colleagues that are denied to you for disability-related reasons. If a business “grants requests for unpaid leave for [one employee’s] certain personal or family reasons, it is a violation of ADA’s association provision to deny [another employee’s] request because[, for example,] she wishes to use the time to assist her mother with a disability.”
5. Consult an Attorney
If you are concerned about returning to in-person work due to your own and/or a household member’s disability, you should consult with an attorney to assess your legal options. Our team at Sanford Heisler Sharp is here to help. We have experienced employment lawyers in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.
 See, e.g., Ellyn Maese & Lydia Saad, How Has the Pandemic Affected U.S. Work Life?, Gallup (Mar. 17, 2021), https://news.gallup.com/poll/339824/pandemic-affected-work-life.aspx. See Erin Mulvaney, Office Culture War Escalates as Workers Balk at Return Mandates, Bloomberg L. (July 19, 2021), https://news.bloomberglaw.com/daily-labor-report/office-culture-war-escalates-as-workers-balk-at-return-mandates. Many workers with disabilities have reported that their pre-pandemic telework requests were rejected on questionable grounds as infeasible. See, e.g., Meera Jagannathan, ‘I Was Told I Could Never Work Remotely’: Before Coronavirus, Workers with Disabilities Say They Implored Employers to Allow Them to Work from Home, Market Watch (May 5, 2020), https://www.marketwatch.com/story/theres-no-excuse-for-not-offering-remote-work-the-coronavirus-induced-work-from-home-revolution-feels-like-vindication-for-some-workers-with-disabilities-2020-05-01. See, e.g., Luciana Paulise, 70% of Companies Plan to Bring Employees Back to Office Fall 2021, Forbes (Mar. 25, 2021), https://www.forbes.com/sites/lucianapaulise/2021/03/25/70-companies-plan-to-bring-employees-back-to-office-fall-2021. Vaccines have been found to provide insufficient protection for groups of adults with medical conditions that compromise their immune systems. See, e.g., Elizabeth Cohen, CDC Warns Covid-19 Vaccines Might Not Protect People Who Are Immunocompromised, CNN (July 16, 2021), https://www.cnn.com/2021/07/16/health/cdc-warning-covid-19-vaccine-immunocompromised/index.html (“[T]he CDC said data suggest the response to the vaccines might be reduced for several groups, including organ transplant recipients, people who are receiving chemotherapy for cancer, people who have certain blood cancers, and people receiving dialysis or taking certain medications that suppress the immune system.”). Also at elevated vulnerability are children under the age of 12, who at the time of this writing are not yet eligible for COVID-19 vaccination. Ctrs. for Disease Ctrl. & Prevention, COVID-19 Vaccines for Children and Teens (last updated July 23, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/adolescents.html. A full account of the civil rights implications of remote vs. in-person work is beyond the scope of this article. Working remotely has caused some workers to experience an increase in discrimination and others to report an increase in inclusive work culture. See, e.g., Leah Fessler, Workplace Harassment in the Age of Remote Work, N.Y. Times (June 8, 2021), https://www.nytimes.com/2021/06/08/us/workplace-harassment-remote-work.html; Shannon Bond, Remote Work Is Leading to More Gender and Racial Harassment, Say Tech Workers, NPR (Mar. 30, 2021), https://www.npr.org/2021/03/30/982449551/remote-work-is-leading-to-more-gender-and-racial-harassment-say-tech-workers; Marianne Cooper, Mothers’ Careers Are at Extraordinary Risk Right Now, The Atlantic (Oct. 1, 2020), https://www.theatlantic.com/family/archive/2020/10/pandemic-amplifying-bias-against-working-mothers/616565; Erin Mulvaney, ‘Motherhood Penalty’ May Fuel Workplace Lawsuits in Pandemic (1), Bloomberg L. (Apr. 29, 2020), https://news.bloomberglaw.com/daily-labor-report/motherhood-penalty-may-fuel-workplace-lawsuits-in-pandemic; Monica Torres, Office Culture Is So Unwelcoming to Black Employees, They Don’t Want to Go Back, HuffPost (June 17, 2021), https://www.huffpost.com/entry/black-workers-prefer-remote-work-racist-office_l_60c8f805e4b0f7e7ccf59fa1; Kara L. Miller, Microaggressions at the Office Can Make Remote Work Even More Appealing, Wash. Post (May 13, 2021), https://www.washingtonpost.com/business/2021/05/13/workplace-microaggressions-remote-workers. See, e.g., Castro v. Classy, Inc., No. 3:19-cv-02246-H-BGS, 2020 WL 996958, at *4–*5 (S.D. Cal. Mar. 2, 2020) (holding that plaintiff stated a claim under the California Fair Employment and Housing Act when she sought to telework because of her child’s rare genetic condition). Of course, for huge swaths of the American workforce, remote work was at no point an option. This led to harmful disparate impacts on communities of color. The people most often left out of the telework revolution are Black and Latino workers. See, e.g., Elise Gould & Jori Kandra, Only One in Five Workers Are Working from Home due to COVID, Econ. Pol’y Inst. (June 2, 2021), https://www.epi.org/blog/only-one-in-five-workers-are-working-from-home-due-to-covid-black-and-hispanic-workers-are-less-likely-to-be-able-to-telework.Conspiring to exacerbate the economic and racial inequalities inherent to remote work options, Black, Latino, and Asian families are also more likely to reside in multigenerational homes that make social distancing more difficult, if not impossible. Ctr. for Pub. Integrity, Map: COVID Put America’s Multigenerational Homes at Higher Risk (Mar. 26, 2021), https://publicintegrity.org/health/coronavirus-and-inequality/map-covid-multigenerational-homes-higher-risk; Elly Yu, Extended Families Living Together Raise Risks for COVID-19 Transmission, NPR (Aug. 8, 2020), https://www.npr.org/2020/08/08/899841137/extended-families-living-together-raise-risks-for-covid-19-transmission. On July 27, 2021, the CDC released updated guidance recommending that the fully vaccinated wear masks indoors where transmission rates are substantial or high. Jacqueline Howard, CDC Updates Guidance, Recommends Vaccinated People Wear Masks Indoors in Certain Areas, CNN (July 27, 2021), https://www.cnn.com/2021/07/27/health/cdc-mask-guidance-vaccinated-people-bn/index.html. See U.S. Equal Emp’t Opportunity Comm’n, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws § K.1 (last updated on June 28, 2021), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws [hereinafter EEOC COVID-19 TA]. You could also point your employer to the Occupational Safety and Health Administration (OSHA)’s guidance on COVID-19-related workplace protections, which provides examples of measures that employers can take to stop the spread of the virus to the benefit of employees and at-risk household members alike. U.S. Dep’t of Lab., OSHA, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID‑19 in the Workplace (last updated June 10, 2021), https://www.osha.gov/coronavirus/safework. EEOC COVID-19 TA, supra note 9, § D.13. U.S. Dep’t of Lab., COVID-19 and the Family and Medical Leave Act Questions and Answers (2021), https://www.dol.gov/agencies/whd/fmla/pandemic. The Families First Coronavirus Response Act, one of the COVID-relief bills, also provided partial paid leave for pandemic-related caregiving. See U.S. Dep’t of Lab., Families First Coronavirus Response Act: Employer Paid Leave Requirements (2020), https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave. These mandatory provisions, however, expired at the end of 2020, and subsequent legislation’s incentivizing employer tax credits ended in March 2021. U.S. Dep’t of Lab., Families First Coronavirus Response Act: Questions and Answers, No. 104 (last visited July 27, 2021), https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. See, e.g., AARP, Paid Family Leave: States with Laws to Help Parents, Other Caregivers (Nov. 19, 2019), https://www.aarp.org/caregiving/financial-legal/info-2019/paid-family-leave-laws.html. In addition to the legislative gaps addressed in this article, our existing disability laws exclude millions of employees from protection—either because their employer is too big or too small; because they have not worked somewhere long enough; or because they are (often incorrectly) deemed a contractor rather than an employee. To the extent lawmakers express concerns about litigation abuse, you can remind them that the ADA provides guardrails in that any accommodation must be “reasonable,” not pose an “undue” burden, and still allow a worker to complete their essential job functions. Cf. Samuel R. Bagenstos, The ADA Amendments Act and the Projects of the American Disability Rights Movement, 23 Univ. DC L. Rev. 139, 149 & n.66 (2020). For more information about how to get involved in ongoing disability rights advocacy, see organizations such as Disability Rights Education & Defense Fund, COVID-19 Advocacy & Resources (last updated May 2, 2021), https://dredf.org/covid-19-advocacy-and-resources; EARN, COVID-19 Workplace Resources and Tools (2021), https://askearn.org/resources/covid-19-workplace-resources-and-tools; and The Arc, COVID-19 Resources for People with Disabilities, Families, and Service Providers, https://thearc.org/covid (2021). 42 U.S.C. § 12112(b)(4); EEOC COVID-19 TA, supra note 9, § D.13. E.g., Castro-Ramirez v. Dependable Highway Express, Inc., 2 Cal. App. 5th 1028, 1042–46 (Cal. Ct. App. 2016); Flagg v. AliMed, Inc., 466 Mass. 23, 29, 37 (Mass. 2013). Kelleher v. Fred A. Cook, Inc., 939 F.3d 465, 469 (2d Cir. 2019) (emphasis in original); accord Schmitz v. Alamance‑Burlington Bd. of Educ., No. 1:18CV910, 2020 WL 924545, at *11 (M.D.N.C. Feb. 26, 2020) (“Though Defendant is correct in that no accommodation need be given to the associate of a disabled person, Defendant is not correct insofar as the denial of such a request cannot serve as evidence of an impermissible motive.”). To make out an associational discrimination claim under the ADA, courts have typically required: (1) that the employee was qualified for their position; (2) that they were subject to an adverse employment action; (3) that the employee was known to have a relative or associate with a disability; and (4) a causal connection between this association and the adverse action. E.g., Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 432 (2d Cir. 2016); Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 487 (6th Cir. 2011). Employer concerns about contagion, employee distraction, or additional health plan expenses can demonstrate animus, but these are not the only theories of disparate treatment. E.g., Pierri v. Medline Indus., Inc., 970 F.3d 803, 807 (7th Cir. 2020) (“[T]he three situations we identified . . . were not meant to be exhaustive.”); Stansberry, 651 F.3d at 487 (“[T]he three theories . . . are not necessarily an exhaustive list.”). See, e.g., Fenn v. Mansfield Bank, No. 14-12554-NMG, 2015 WL 628560, at *3 (D. Mass. Feb. 12, 2015) (holding that plaintiff had sufficiently pled associational claim under state law where he alleged that his employer abruptly fired him because it “harbored animosity against [plaintiff] even for asking for the accommodation” to care for his spouse’s disability).loyment sufficient for her associational discrimination claim). See, e.g., Castro, 2020 WL 996958, at *3–*4 (finding that plaintiff stated an ADA claim where employer denied her request to work from home to care for her son’s physical disabilities, thus effectively terminating her); Schmitz, 2020 WL 924545, at *12 (holding that plaintiff plausibly alleged associational discrimination where teacher was pushed out after pursuing efforts to care for her disabled son). See 42 U.S.C. § 12112(b)(4) (defining prohibited discrimination to encompass “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association” (emphases added)); 29 C.F.R. § 1630.8 (“It is unlawful for a covered entity to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association.” (emphases added)). Joan Farrell, ADA Compliance Guide: The Association Provisions of ADA ¶ 136 (2021) (“ADA would not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability. However, an employer must avoid treating an employee differently than other employees because of his or her association with a person with a disability.”).