Long-term COVID and the ADA

What kind of weight do these announcements carry? 

These announcements are a significant change. They signal Biden’s commitment to disability law and to disability justice. One thing to note is that Biden nominated a disability law professor, Samuel Bagenstos, as the Health and Human Services general counsel. That’s a very big deal. Biden is putting people who understand disability law in these positions, and these advisors are helping him to see the long haul, no pun intended, for the long-term effects of COVID and what that means for disability rights.

Before Biden’s announcement, what kind of obligations did employers have to their workers who are long COVID sufferers? 

One thing about the ADA is that there’s no list of conditions that meet the definition automatically. That was intentional. Part of what Congress was trying to do was to destigmatize disability and to make it about protection on an individual level. Two people who have the same diagnosis will experience it differently, and Congress wanted to craft the definitions of disability, and who’s protected, in a way that was highly individualized.

It’s always been the case that there has to be, in terms of the legal definition of disability, a physical or a mental impairment that substantially limits one or more major life activity. In terms of long COVID, for instance if someone had poor lung capacity, they would have to show that compared to the average person they are substantially limited in a major life activity, which could be breathing. But even if Biden hadn’t said that, people who have long COVID symptoms could have still brought an action under the ADA, if they’re able to meet that legal definition. 

The importance of Biden’s statement really has to do with signaling and interpretation and has strong expressive value to say, ‘Look, this is, this is something that we see through a disability lens. People who have survived COVID will be protected under this particular law.’ 

Expressive value is so important because the first 18 years of the ADA were basically people fighting for whether or not they met the threshold definitional question. Courts took a narrow view, and people fought all the way up to the Supreme Court. The Supreme Court said if someone had a disability, it had to be severe for them to be protected. If the person can mitigate the disability with medication or with assistive devices, then, the Court said, they’re not a person with a disability under the Americans with Disabilities Act.

Congress then stepped in in 2008 and said the courts had gotten it wrong for 18 years. Congress said the definition of disability should be a low threshold. It shouldn’t prevent the actual discussion of the substance of the case. In terms of the expressive value for folks who are disability-law geeks like me, Biden’s statement is particularly important given this history that the definition of disability has been flawed.

What are the challenges ahead for this effort to protect COVID long haulers?

I’d say there are three challenges. The first is going to be giving legs to Biden’s statement. Even though Biden made this incredible proclamation, the question now is how are agencies and how are courts going to empower employers? How are frontline managers going to implement this? 

For instance, say a construction worker had COVID, was on a ventilator, came through it, and is now going back to work. Trying to tell the foreman that they can’t work at certain sites due to dust particles is going to be hard. People are going to have to adjust their assumptions about who has a disability. The law says that it’s a broad definition, but this is where the cultural norms step in. We’re not quite where we need to be in terms of the social norms and cultural norms of disability. That construction worker is going to face discrimination in the sense that they might not look like a person with a disability; maybe they’ve worked that job for 20 years and never had any breathing problems before. Battling these cultural norms is going to be the first problem.

The second challenge will be the backlash that we’re going to see. There will likely be news stories about how if people with long COVID are able to access the ADA, what other conditions are going to be seen as deserving of protection? We’ll start to see people latching onto narratives about deservingness, and that's a misunderstanding of what disability law is.

The third issue will be, at some point, we need to have a conversation about what this means for our definition of disability as a legal matter and whether the structure of the law has survived after the 2008 amendments. Is that enough, or do we need to do more in the law to help with the social and cultural shifts that are lagging behind?

Last year marked a seven-year-high unemployment rate for people with disabilities. What are those statistics telling us?

It is complicated because there are some scholars and some empirical data out there suggesting that the ADA itself may have fared poorly for workers with disabilities because employers became more protective, more invested in compliance, and so they were more wary of hiring employees with disabilities. We may actually be seeing more discrimination as opposed to less.

I wrote a piece for the The University of Pennsylvania Law Review Online in February 2020 right as COVID hit, and in it I predicted that we were going to see this fear and this reduction of disability rights, an idea that disability rights are viewed as expendable and are often seen as a charitable act rather than a legal mandate. The pandemic unfortunately has lived up to my expectations, and we have seen everything from HHS early on having to address the question of ventilators and rationing medical care, and the notion that people with disabilities were less worthy of treatment or intervention. That was the first wave, but we're also seeing it in terms of the bottom line. As businesses are losing money, employers may be less inclined to comply with disability laws, seeing them as onerous or detrimental to their bottom line. 

Disabled workers are the first employees to go, even though there’s empirical data that accommodations for the most part are negligible in terms of cost to employers. So, I do think that the unemployment rate is telling, in some sense, because it's confirming that disability rights are often seen as expendable, and employing people with disabilities is not seen as a right, so much as an act of charity or the right thing to do. That’s the wrong frame to understand what’s happening. It has to be seen as a matter of law.

What’s the most important thing people need to understand about ADA protections for COVID long haulers?

The main point is that for folks who have had COVID and are experiencing symptoms, the ADA has always been there to offer protection, even before Biden’s speech, and it will continue to be there afterwards. What I hope people take away from this is to better understand that disability is not limited to a small group of people that may have more physical or obvious manifestations, what I’ve called ‘the aesthetics of disability’ in my work. If we do that, maybe people can understand that 61 million adults in the United States are people with disabilities. That’s a huge number, beyond the folks who are wheelchair users or those who use other assistive devices. This number is growing and will continue to grow, and I hope people take disability rights and disability law seriously.

That’s why Biden's statement is really important because there’s been a long battle around disability as a legal category, who’s entitled to protection, and all the backlash about fault and who’s deserving or not. I want it to be clear that this moment is really about the interaction of our cultural understanding of disability with the law itself, and they are interdependent.