Oklahoma Law Review Oklahoma Law Review
Volume 74 | Number 1
Symposium: Privacy in a Pandemic: How Employers, Insurers, and Government Actors Collect
and Use Your Data
2021
Employees with Intellectual Disabilities During the Covid-19 Employees with Intellectual Disabilities During the Covid-19
Pandemic: New Directions for Disability Anti-Discrimination Law? Pandemic: New Directions for Disability Anti-Discrimination Law?
Leslie P. Francis
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Part of the Disability Law Commons, and the Health Law and Policy Commons
Recommended Citation Recommended Citation
Leslie P. Francis,
Employees with Intellectual Disabilities During the Covid-19 Pandemic: New Directions
for Disability Anti-Discrimination Law?
, 74 OKLA. L. REV. 1 (2021),
https://digitalcommons.law.ou.edu/olr/vol74/iss1/2
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1
EMPLOYEES WITH INTELLECTUAL DISABILITIES
DURING THE COVID-19 PANDEMIC: NEW
DIRECTIONS FOR DISABILITY ANTI-
DISCRIMINATION LAW?
LESLIE P. FRANCIS
*
I. Introduction
COVID-19 has been devastating for many employees. Job losses are
extensive, especially in lower wage positions and positions that do not
require college degrees.
1
Hardest hit employment sectors include
hospitality, travel and transportation, personal service, and manufacturing.
2
Risks and challenges of employment have also been altered for the
worse. Jobs requiring on-site performance carry high risks of exposure
when COVID-19 transmission is widespread.
3
Jobs without sick leave,
including nearly all part-time positions, present individuals with difficult
choices between coming to work sick or staying home and losing income or
potentially their jobs. The Families First Coronavirus Response Act
required some employers to provide employees with paid sick leave,
including part-time employees on a proportional basis.
4
This requirement
* Leslie P. Francis, JD, Ph.D., is distinguished Alfred C. Emery Professor of Law and
Distinguished Professor of Philosophy at the University of Utah, where she also directs the
University’s Center for Law & Biomedical Sciences. She is grateful to Jessica Hyde Holzer
and the S.J. Quinney College of Law for invaluable support for the research on which this
Article is based. Her work on this project also was supported in part by the Utah Center for
Excellence in ELSI Research (UCEER). UCEER is supported by the National Human
Genome Research Institute of the National Institutes of Health under Award Number
RM1HG009037. The content is solely the responsibility of Professor Francis and does not
necessarily represent the official views of the National Institutes of Health.
1
. Kim Parker, Rachel Minkin & Jesse Bennett, Economic Fallout from COVID-19
Continues to Hit Lower-Income Americans the Hardest, PEW RSCH. CTR. (Sept. 24, 2020),
https://www.pewresearch.org/social-trends/2020/09/24/economic-fallout-from-covid-19-
continues-to-hit-lower-income-americans-the-hardest/.
2
. Kenneth Terrell, 8 Occupations Hit Hardest by the Pandemic in 2020, AARP (Jan.
11, 2021), https://www.aarp.org/work/job-search/info-2020/job-losses-during-covid.html.
3
. See, e.g., OCCUPATIONAL SAFETY & HEALTH ADMIN., OSHA 3993, WORKER
EXPOSURE RISK TO COVID-19 (2020), https://www.osha.gov/Publications/OSHA3993.pdf.
4
. Families First Coronavirus Response Act: Employee Paid Leave Rights, U.S. DEP’T
OF LAB., https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave (last
visited Feb. 15, 2021) (explaining that, based upon the qualifying reason for leave, a part-
time employee is eligible for hours of leave in proportion to the employee’s average hours of
work over a certain time period).
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2 OKLAHOMA LAW REVIEW [Vol. 74:1
expired at the end of December 2020, and was not extended by Congress.
5
Employees dependent on public transit to get to work faced reduced
services and risks of exposure from using the services that remain; public
transit may remain changed even if the severity of the pandemic wanes.
6
Employees with intellectual disabilities may be disproportionally
impacted by these risks and challenges. Many are part-time workers or even
volunteers without any formal leave arrangements. Jobs such as greeting or
shelf re-stocking require on-site presence. Concerns about social distancing
may make accommodations involving additional personnel, such as job
coaches, no longer practical.
This Article addresses employment risks and challenges presented by the
COVID-19 pandemic for people with intellectual disabilities, in particular
people with Down syndrome. Part II presents the risks and challenges of
employment for people with Down during the COVID-19 pandemic. Part
III lays out aspects of Title I of the Americans with Disabilities Act of 1990
(ADA)
7
that are most relevant to these challenges. Part IV explores whether
the ADA may be helpful in taking on these risks and challenges. It argues
that limits long apparent in Title I of the ADA as it applies to people with
intellectual disabilities
8
may be exacerbated by the COVID-19 pandemic.
Part V concludes by suggesting several ways these limits might be
addressed.
II. COVID-19 and the Risks and Challenges of Employment
for People with Down
People with Down syndrome face multiple risks and challenges from
COVID-19. They are at a significantly elevated risk of mortality or
morbidity should they become ill with COVID-19. They also face
significant challenges to continuing to work during the pandemic.
5
. Essential Protections During the COVID-19 Pandemic, U.S. DEP’T OF LAB.,
https://www.dol.gov/agencies/whd/pandemic (last visited Feb. 15, 2021) (noting, however,
that tax credits were extended for employers who do provide such leave).
6
. See Kaley Overstreet, Bus or Bust? The Future of Public Transit in Life After
COVID-19, ARCHDAILY (Dec. 4, 2020), https://www.archdaily.com/952441/bus-or-bust-the-
future-of-public-transit-in-life-after-covid-19.
7
. 42 U.S.C. §§ 12111–12117.
8
. See, e.g., Leslie Pickering Francis, Employment and Intellectual Disability, 8 J.
GENDER, RACE & JUST. 299 (2004) (discussing “anti-discriminationism, welfarism, and
assumptions about the structure of employment as explanations of why current ADA
jurisprudence has left people with intellectual impairments largely unprotected”).
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2021] INTELLECTUAL DISABILITIES DURING THE PANDEMIC 3
People with Down syndrome who become ill with COVID-19 have been
severely affected at levels much higher than those experienced by others in
the general population. A study of eight million adults in the U.K.
calculated that people with Down had a “4-fold increased risk for COVID-
19–related hospitalization and a 10-fold increased risk for COVID-19–
related death.”
9
Medical conditions associated with Down include heart conditions,
immune dysfunction, diabetes, obesity, pulmonary hypertension, and sleep
apnea,
10
all conditions increasing risks from COVID-19 infection.
11
Although the explanation for these disparities is not fully understood,
features of immune system function in Down may increase the likelihood of
infection severity.
12
In December 2020, the U.S. Centers for Disease
Control and Prevention added Down to the list of conditions for which the
evidence supports a high risk of severe illness from COVID-19.
13
In the face of these differential risks, medical experts recommend that
patients with Down syndrome avoid all non-essential activities.
14
The
advice of advocates for people with Down syndrome is simple: stay
home!
15
Advocates have also pushed forcefully for non-discriminatory
9
. Ashley Kieran Clift, Carol A.C. Coupland, Ruth H. Keogh, Harry Hemingway &
Julia Hippisley-Cox, COVID-19 Mortality Risk in Down Syndrome: Results from a Cohort
Study of 8 Million Adults, ANNALS INTERNAL MED. (Oct. 21, 2020), https://www.
acpjournals.org/doi/10.7326/M20-4986.
10
. Q&A on COVID-19 and Down Syndrome, GLOB. DOWN SYNDROME FOUND. (July
30, 2020), https://www.globaldownsyndrome.org/wp-content/uploads/2020/07/07-30-
EXPANDED-ENG-QA-FINAL.pdf.
11
. See, e.g., Usha S. Krishnan, Sankaran S. Krishnan, Shipra Jain, Mara B. Chavolla-
Calderon, Matthew Lewis, Wendy K. Chung & Erika B. Rosenzweig, SARS-CoV-2 Infection
in Patients with Down Syndrome, Congenital Heart Disease, and Pulmonary Hypertension:
Is Down Syndrome a Risk Factor?, 225 J. PEDIATRICS 246, 246 (2020) (reporting that
patients with a combination of Down syndrome, congenital heart disease, sleep apnea, and
pulmonary hypertension are “at high risk during respiratory viral illnesses”).
12
. Meredith Wadman, People with Down Syndrome Face High Risk from Coronavirus,
370 SCI. 1384, 1384 (2020).
13
. Medical Conditions, CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-conditions.html (May 13, 2021).
14
. Coronavirus (COVID-19) Information for Patients with Down Syndrome, CIN.
CHILDREN’S, https://www.cincinnatichildrens.org/patients/coronavirus-information/condition
-specific/down-syndrome (last visited Feb. 15, 2021) (“You and your loved one should stay
home except for essential activities such as getting food, medications and healthcare
visits.”).
15
. Id.; see, e.g., Brian Chicoine, Returning to School or Work in Fall 2020, ADVOC.
MED. GRP. (July 23, 2020), https://adscresources.advocatehealth.com/returning-to-school-or-
work-in-fall-2020/?fbclid=IwAR0q3nHMQlrX24O31knUsfCGhqQKuA3H9S7lwBy14L96
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4 OKLAHOMA LAW REVIEW [Vol. 74:1
access to COVID-19 treatment for people with Down as well as for priority
access to vaccination along with others in high-risk groups. Therefore,
while the pandemic rages, it may be ill-advised for people with Down to
continue to work in many jobs.
Even before COVID-19, the employment situation of people with Down
was comparatively poor. Employment data for people with disabilities are
typically aggregated for all disabilities, so data limited to Down syndrome
are limited. According to a national survey regarding people with Down
conducted in 2015, 56.6% were employed with pay but only 3% of these
were employed full time.
16
Many others (25.8%) were volunteers
performing services a few hours per week.
17
Nearly a third (30.2%) were
unemployed.
18
Paid employment sectors for people with Down included
food service (19%), office or clerical work (19%), cleaning or custodial
work (14%), and grocery stores (12%).
19
All of these industries require on-
site activities.
People with Down may have characteristics that increase the challenges
of jobs and require additional personal supports, including job coaching.
These characteristics include problems with communication skills,
problems with short-term memory, problems in dealing with changes in
routine, and problems with executive functioning. Together with their
increased medical risks, these are all characteristics that pose particular
difficulties for employment of people with Down during the COVID-19
pandemic.
III. ADA Title I, Employment Discrimination, and Intellectual Disabilities
Title I of the Americans with Disabilities Act prohibits employers
20
from
discriminating against otherwise qualified individuals on the basis of
chEgSwvrhHMm6tY (advising caregivers to consider the “rate of infection in [their] area,”
the “health status of the individual [with Down syndrome],” how well “the individual
follow[s] safety and hygiene recommendations,” the health of the other people “with whom
the individual with Down syndrome lives,” the importance of the activity to which they are
returning, and what alternatives to in-person activities might be available or developed).
16
. Libby Kumin & Lisa Schoenbrodt, Employment in Adults with Down Syndrome in
the United States: Results from a National Survey, 29 J. APPLIED RSCH. INTELL. DISABILITIES
330, 334 (2016).
17
. Id.
18
. Id.
19
. Id. at 335.
20
. “Employer” is defined as an industry member having fifteen or more employees on
workdays in at least twenty calendar weeks in the preceding year. 42 U.S.C. § 12111(5)(A).
https://digitalcommons.law.ou.edu/olr/vol74/iss1/2
2021] INTELLECTUAL DISABILITIES DURING THE PANDEMIC 5
disabilities.
21
“Qualified individuals” are those “who, with or without
reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.”
22
In
determining what are essential job functions, “[c]onsideration shall be given
to the employer’s judgment”; written job descriptions prepared before
advertising or interviewing for a position are evidence of these functions.
23
In addition to the accessibility of facilities, reasonable accommodations
include “job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification of equipment
or devices, appropriate adjustment or modifications of examinations,
training materials or policies, the provision of qualified readers or
interpreters, and other similar accommodations for individuals with
disabilities.”
24
For people with Down or other similar intellectual disabilities, these
definitions of discrimination present several challenges. One challenge is
whether they are “qualified” for positions in question. A second challenge
is how essential job functions are described, including whether aspects of
the job must be performed independently or may be performed as part of a
team or with coaching or other help. A third challenge is what counts as
reasonable accommodations. As described below,
25
prior case law
involving people with Down or other intellectual disabilities illustrates the
severity of these challenges.
Even if people with intellectual disabilities can successfully establish that
they can perform essential job functions with accommodations, they may be
met with employer defenses to their claims of discrimination. One defense
is that an accommodation which would otherwise prove successful would
be an “undue hardship” for an employer.
26
In support of this defense,
employers may cite the expense of the accommodation in light of the
overall resources available—resources that may have increasingly been
strained by the pandemic.
27
The employer may also cite the impact of the
accommodation on how the facility functions.
28
Accommodations that were
satisfactory in non-pandemic times might become far more difficult in
21
. Id. § 12112(a).
22
. Id. § 12111(8).
23
. Id.
24
. Id. § 12111(9)(B).
25
. See infra Section III.A.
26
. 42 U.S.C. § 12111(10)(A).
27
. Id. § 12111(B)(i)–(iii).
28
. Id. § 12111(B)(ii).
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6 OKLAHOMA LAW REVIEW [Vol. 74:1
pandemic circumstances in which social distancing is necessary, to take just
one example. A second defense that the employer might call upon is the
“direct threat” defense. Under this defense, employers may insist as a
qualification that the individual not pose “a direct threat to the health or
safety of other[s]” in the workplace.
29
Because this defense has been
interpreted to include threats to the individual him or herself,
30
it might be
argued that a person with Down should not work on-site because of their
own increased risks from COVID-19. If people with intellectual disabilities
have difficulties identifying symptoms of infection, wearing masks and
other protective equipment, or maintaining distance from others, then they
may also be considered direct threats to others.
While no reported cases as yet involve COVID-19, people with Down or
other intellectual disabilities, and disability discrimination, surely these
cases may emerge. If they do, the prior case law involving employees with
Down, as well as employees with other intellectual disabilities, is not
encouraging.
A. Job Qualifications
One important difficulty for employees with intellectual disabilities is
demonstrating that they are qualified, with or without accommodations, to
perform essential job functions. An employee’s prima facie case claiming
discrimination on the basis of disability
31
must allege that she comes under
a prong of the definition of disability, that she is qualified for the job in
question, and that she suffered a discrimination—such as an adverse job
action or failure to accommodate—on the basis of that disability.
32
The
inquiry about whether an individual is qualified may be difficult to separate
out from other inquiries, such as those regarding essential job functions or
reasonable accommodations, because to be qualified the individual needs to
29
. Id. § 12113(b).
30
. Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 78 (2002) (noting that the defense
“allow[s] an employer to screen out a potential worker with a disability not only for risks
that he would pose to others in the workplace but for risks on the job to his own health or
safety as well”).
31
. 42 U.S.C. § 12112(a).
32
. See, e.g., Conners v. Wilkie, 984 F.3d 1255, 1260 (7th Cir. 2021) (noting that failure
to make reasonable accommodations may constitute disability discrimination under the
ADA); Brader v. Biogen Inc., 983 F.3d 39, 55 (1st Cir. 2020) (analyzing a discrimination
claim based upon “a pattern of adverse employment actions” which “constituted a hostile
work environment”); Exby-Stolley v. Bd. of Cnty. Comm’rs, 979 F.3d 784, 819 (10th Cir.
2020) (holding that a failure-to-accommodate discrimination claim may be made without
showing of an adverse employment action).
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2021] INTELLECTUAL DISABILITIES DURING THE PANDEMIC 7
be able to perform essential job functions with or without reasonable
accommodations.
As described above, people with Down have characteristics that may
require accommodations in order to perform jobs successfully. These
characteristics include communication skills, problems with short-term
memory, problems in dealing with changes in routine, and problems with
executive functioning. These characteristics may be especially problematic
if individuals are expected to function independently on the job or if job
responsibilities are changed due to pandemic conditions.
Many people with Down syndrome have limited communication skills.
They may have difficulties in developing language or in making their
speech intelligible.
33
Their abilities to understand what is being said—
receptive language skills—are typically better than their expressive
abilities.
34
The result may be that people with Down have a harder time
asking questions, voicing concerns, or even articulating what they do
understand about a job. For example, Robert Cotton, a person with Down,
was an employee of a firm providing cleaning services to medical
facilities.
35
Although he had functioned on the job at a hospital successfully
for fifteen years, his troubles began when the hospital outsourced
supervision of its cleaning to a management firm.
36
Cotton’s supervisor
informed the management firm that Cotton needed extra help in
understanding anything he was being told, but the new management
communicated with him by written notes and eventually reassigned him
because of inadequacies in his job performance.
37
People with Down may also be frustrated by their inability to
communicate and thus communicate inappropriately. For example, Sean
Reeves, an employee with Down, was terminated for violating employer
anti-harassment policies after cursing within earshot of customers.
38
His
cursing, however, was in response to situations that had distressed him and
33
. E.g., Joanne E. Roberts, Johanna Price & Cheryl Malkin, Language and
Communication Development in Down Syndrome, 13 MENTAL RETARDATION &
DEVELOPMENTAL DISABILITIES RSCH. REVS. 26, 27–30 (2007).
34
. E.g., Gary E. Martin, Jessica Klusek, Bruno Estigarribia & Joanne E. Roberts,
Language Characteristics of Individuals with Down Syndrome, 29 TOPICS LANGUAGE
DISORDERS 112, 114 (2009).
35
. Cotton v. Hosp. Housekeeping Sys., Ltd., No. 04CV447FWO, 2005 WL 2654354,
at *2 (M.D. Ala. Oct. 18, 2005).
36
. Id.
37
. Id.
38
. Reeves ex rel. Reeves v. Jewel Food Stores, Inc., 759 F.3d 698, 700 (7th Cir. 2014).
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8 OKLAHOMA LAW REVIEW [Vol. 74:1
might have been interpreted as expressions of his own frustration about his
inability to communicate his distress.
Short-term memory presents another qualification challenge for people
with Down. Verbal memory is particularly likely to be impaired.
39
As a
result, people with Down may require frequent reminders or coaching in
order to perform jobs successfully. For example, John Healey was an
employee with Down who was a “receiving associate” at Sears.
40
Healey
could unwrap merchandise but could not follow through on moving what he
had unwrapped to the appropriate staging locations without assistance.
41
Consequently, Sears terminated his employment.
42
Changes in routine and the need for flexibility may be especially difficult
for people with Down because of difficulties in memorizing sequences and
engaging in abstract thinking.
43
For example, Marlo Spaeth was a part time
Wal-Mart employee with Down who worked folding towels, tidying aisles,
and helping customers.
44
Her schedule, which had been 12:00-4 p.m., was
changed and lengthened to 1-5:30 p.m. as a response to increased customer
traffic in the later time slot.
45
Spaeth had trouble adjusting to the shift
change because she thought she would miss her bus and get sick because
she could not eat dinner on time.
46
She frequently arrived late for the new
shift or left it early, and Wal-Mart terminated her for excessive
absenteeism.
47
This case illustrates difficulties employees may have when
routines are disrupted. It also raises questions about the definition of
essential job functions and reasonable accommodations, discussed below.
48
39
. Christopher Jarrold & Alan D. Baddeley, Short-Term Memory in Down Syndrome:
Applying the Working Memory Model, 7 DOWN SYNDROME RSCH. & PRAC. 17, 17 (2001).
40
. Healy ex rel. Healy v. Sears, Roebuck & Co., No. 08-14320, 2009 WL 2168870, at
*2 (E.D. Mich. July 21, 2009).
41
. Id. at *3.
42
. Id.
43
. Ovidio Lopes da Cruz Netto, Silvia Cristina Martini Rodrigues, Marcus
Vasconcelos de Castro, Diego Pereira da Silva, Robson Rodrigues da Silva, Richard Ribeiro
Brancato de Souza, Adriana A. Ferreira de Souza & Marcia Aparecida Silva Bissaco,
Memorization of Daily Routines by Children with Down Syndrome Assisted by a Playful
Virtual Environment, 10 SCI. REPS. 3144 (2020).
44
. EEOC v. Wal-Mart Stores E. LP, 436 F. Supp. 3d 1190, 1193 (E.D. Wis. 2020).
45
. Id. at 1194.
46
. Id. at 1196 (discussing that the bus she needed actually did run until 8 p.m. and
suggesting that she simply found the shift change not to her liking).
47
. Id. at 1199.
48
. See infra Sections III.B–C.
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2021] INTELLECTUAL DISABILITIES DURING THE PANDEMIC 9
“Executive functioning” refers to the higher-level cognitive skills needed
to organize tasks, plan, and exercise self-control.
49
Deficits in memory and
abstract thinking pose noteworthy difficulties for people with Down in
exercising planning and organizational skills.
50
These skills may be needed
to perform tasks independently rather than with others helping the
employee to proceed step by step.
51
For example, A.K., a library trainee
with Down, was judged not qualified because he needed supervision to stay
on task with the work to which he was assigned.
52
B. Essential Job Functions
To be qualified, employees must be able to perform essential job
functions. Employers’ judgments regarding which functions are essential
bear significant weight.
53
An employer’s prior written description of the
position is considered evidence of essential functions.
54
An outer limit to
the employer’s prerogative to set qualification standards is that these
standards may not be set in a way that tends to screen out individuals with
disabilities, unless they are job-related and consistent with business
necessity.
55
Individuals with Down have experienced adverse job actions based on
the employer’s delineation of essential job functions. For example, the
Ninth Circuit concluded that Jamie Miller, a job trainee with Down, was not
a qualified individual because “he cannot perform without a job coach at his
elbow and . . . he does not have the basic, rudimentary knowledge required
49
. E.g., Executive Functions, UCSF WEILL INST. FOR NEUROSCIENCES, https://memory.
ucsf.edu/symptoms/executive-functions (last visited Feb. 15, 2021).
50
. See Nancy Raitano Lee, Payal Anand, Elizabeth Will, Elizabeth I. Adeyemi, Liv S.
Clasen, Jonathan D. Blumenthal, Jay N. Giedd, Lisa A. Daunhauer, Deborah J. Fidler &
Jamie O. Edgin, Everyday Executive Functions in Down Syndrome from Early Childhood to
Young Adulthood: Evidence for Both Unique and Shared Characteristics Compared to
Youth with Sex Chromosome Trisomy (XXX and XXY), 9 FRONTIERS BEHAV. NEUROSCIENCE
264 (2015).
51
. See, e.g., Killoran ex rel. A.K. v. Westhampton Beach Sch. Dist., No. 18-cv-3389,
2020 U.S. Dist. LEXIS 25505, at *6–7 (E.D.N.Y. Feb. 12, 2020) (refusing to allow an
individual with Down to serve as a volunteer camp counselor because he could not
independently take care of younger children). See generally Francis, supra note 8, at 316–19
(demonstrating that courts may decide employees with Down are not qualified based upon
conceptualizations of work as requiring independent performance).
52
. Miller v. Santa Clara Cnty. Libr., 24 F. App’x 762, 763 (9th Cir. 2001).
53
. 42 U.S.C. § 12111(8) (“For the purposes of this subchapter, consideration shall be
given to the employer’s judgment as to what functions of a job are essential.”).
54
. Id.
55
. Id. § 12112(b)(3), (6); 29 C.F.R. §§ 1630.7, 1630.10(a) (2020).
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10 OKLAHOMA LAW REVIEW [Vol. 74:1
for library work.”
56
In a case discussed above, John Healey was terminated
by Sears because he was unable to perform all of the “essential functions”
of a Receiving Associate; he could only unwrap merchandise and take out
the trash, but could not successfully move the merchandise to its assigned
place in the store without assistance.
57
Decisions to the like effect have involved people with intellectual
disabilities and functional capacities similar to many people with Down.
For example, Bobbie Bost, a “moderately mentally retarded” woman, was
terminated by Dollar General because she could not operate a cash register,
a function the employer contended was essential to her clerk position.
58
The
court concluded that, although the employer had specifically hired Bost for
a position that did not require operating the cash register, questions of fact
remained about whether Bost was indeed performing the job functions that
were essential or whether her job coach was performing those functions for
her.
59
To take another example, Joseph Phillips, also “mildly mentally
retarded,” had worked for years at a plant manufacturing adhesives, where
his position of “Entry Level/Utility” involved primarily “stacking buckets
on pallets and helping to clean the warehouse floor.”
60
The employer
needed to lay off one employee for cost reasons and chose Phillips for the
layoff because his tasks could be reassigned.
61
The court concluded that the
employer did not discriminate against Phillips based on his disability.
Rather, the employer had chosen Phillips as the employee to let go because
he was the worker with the most limited skills whose tasks could be
reassigned.
62
C. Reasonable Accommodations
Under the ADA, it is also discriminatory for employers to fail to provide
reasonable accommodations for employees who can perform essential job
functions with accommodations.
63
The disability must be known to the
56
. Miller, 24 F. App’x at 765.
57
. Healy ex rel. Healy v. Sears, Roebuck & Co., No. 08-14320, 2009 WL 2168870 at
*5–6 (E.D. Mich. July 21, 2009).
58
. EEOC v. Dollar Gen. Corp., 252 F. Supp. 2d 277, 280–81, 286 n.3 (M.D.N.C.
2003).
59
. Id. at 292–93.
60
. Phillips v. DAP, Inc., 10 F. Supp. 2d 1334, 1335 (N.D. Ga. 1998).
61
. Id.
62
. Id. at 1336.
63
. 42 U.S.C. § 12112(b)(5).
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2021] INTELLECTUAL DISABILITIES DURING THE PANDEMIC 11
employer, however, for there to be liability on the part of the employer.
64
What constitutes an adequate request for accommodations may raise
contested questions of fact, and courts reach different conclusions about the
fact situations that suffice to constitute a request for accommodations.
65
Nonetheless, the law is clear that without some notice, the employer is
under no obligation to take the lead in suggesting an accommodation.
66
On
the other hand, employers may not require employees to accept
accommodations.
67
Once the employer knows that the employee has a
disability for which accommodations might be relevant, the employer is
obligated to enter into an interactive process with the employee to
determine what reasonable accommodations might be possible to enable the
64
. Id. The statutory language is “not making reasonable accommodations to the known
physical or mental limitations.” Id.; see, e.g., Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d
1130, 1134 (7th Cir. 1996) (stating that an employee’s duty to inform the employer of a
disability prior to ADA liability is “a duty dictated by common sense lest a disabled
employee keep his disability a secret and sue later for failure to accommodate”); see also
The ADA: Your Responsibilities as an Employer, U.S. EQUAL EMP. OPPORTUNITY COMM’N,
https://www.eeoc.gov/publications/ada-your-responsibilities-employer (last visited Feb. 15,
2021) (“An employer’s obligation to provide reasonable accommodation applies only to
known physical or mental limitations. However, this does not mean that an applicant or
employee must always inform you of a disability. If a disability is obvious, e.g., the
applicant uses a wheelchair, the employer ‘knows’ of the disability even if the applicant
never mentions it.”).
65
. Compare Waggel v. George Washington Univ., 957 F.3d 1364, 1372 (D.C. Cir.
2020) (finding that an employee’s mere request for medical leave coupled with the
employer’s knowledge of the employee’s disability was insufficient to constitute request for
accommodation), with Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694 (7th Cir.
1998) (“A request as straightforward as asking for continued employment is a sufficient
request for accommodation.”).
66
. Aubrey v. Koppes, 975 F.3d 995, 1006 (10th Cir. 2020) (“An employer cannot be
liable for failing to accommodate a disability if it is unaware of the need for an
accommodation.”); Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1261 n.14 (11th Cir.
2007) (acknowledging but declining to resolve the question of whether an accommodation
proposed by a terminated employee during litigation was sufficient to trigger ABA liability,
absent any pre-litigation request for accommodation).
67
. U.S. EQUAL EMP. OPPORTUNITY COMM’N, EEOC-CVG-2003-1, ENFORCEMENT
GUIDANCE ON REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE ADA
(2002), https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommoda
tion-and-undue-hardship-under-ada [hereinafter EEOC ENFORCEMENT GUIDANCE ON
REASONABLE ACCOMMODATION] (“An employer may not require a qualified individual with
a disability to accept an accommodation. If, however, an employee needs a reasonable
accommodation to perform an essential function or to eliminate a direct threat, and refuses to
accept an effective accommodation, s/he may not be qualified to remain in the job.”).
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12 OKLAHOMA LAW REVIEW [Vol. 74:1
employee to function successfully.
68
This interactive process is required
even if the employer believes that the initial accommodation requested by
the employee is not reasonable.
69
Whether accommodation requests are reasonable also presents complex
questions of fact. Some accommodation requests are for adjustments of job
responsibilities; their reasonableness depends on their impact on essential
job responsibilities. For example, Warren Adams, a hospital employee with
intellectual disabilities whose primary job duties involved keeping the
kitchen clean and taking out the garbage, sought to be relieved of
responsibilities for delivering meal trays to patients.
70
His concern was that
because he could not read well, he might deliver meals to the wrong
patients, causing them harm.
71
The court concluded that he had presented an
issue of fact over whether the accommodation he requested was
reasonable.
72
Whether the accommodation was reasonable, in the court’s
analysis, depended on whether delivering the trays was a marginal or an
essential job function.
73
Accommodations that remove an essential function
are “facially unreasonable,” according to the court.
74
Other frequent accommodation requests are for changes in job
scheduling. The reasonableness of these requests will depend on the
burdens they impose on other employees and the extent to which they
would disrupt productivity or other employer functions. For example,
Marlo Spaeth, the part-time Walmart employee with Down whose case was
described above, presented a question of fact whether her request to stay on
an earlier schedule was reasonable. The court concluded that her request to
stay on the earlier schedule could have been reasonable in light of the
68
. E.g., Winkfield v. Chi. Transit Auth., 435 F. Supp. 3d 904, 910 (N.D. Ill. 2020);
EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005). See generally U.S.
EQUAL EMP. OPPORTUNITY COMM’N, QUESTIONS & ANSWERS ABOUT PERSONS WITH
INTELLECTUAL DISABILITIES IN THE WORKPLACE AND THE AMERICANS WITH DISABILITIES ACT
(2004), 2004 WL 2368526.
69
. See EEOC v. Wal-Mart Stores E. LP, 436 F. Supp. 3d 1190, 1203–04 (E.D. Wis.
2020).
70
. Adams v. Crestwood Med. Ctr., No. 5:18-cv-01443-HNJ, 2020 WL 7049856, at *6
(N.D. Ala. Dec. 1, 2020).
71
. See id. at *5.
72
. Id. at *27.
73
. Id.
74
. Id. at *28; see also EEOC ENFORCEMENT GUIDANCE ON REASONABLE
ACCOMMODATION, supra note 67 (“An employer does not have to eliminate an essential
function, i.e., a fundamental duty of the position. This is because a person with a disability
who is unable to perform the essential functions, with or without reasonable accommodation,
is not a ‘qualified’ individual with a disability within the meaning of the ADA.”).
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possibility that other employees would have been happy to take more
extended shifts.
75
One type of accommodation of particular relevance to the circumstances
of the pandemic is telecommuting. While remote work may be possible for
some positions, it is not a reasonable accommodation if essential job
functions require on-site presence.
76
Food service workers or in-store
cashiers are examples of such jobs. Other jobs may require direct
supervision for their essential functions to be performed successfully;
telecommuting would not be a reasonable accommodation for these
positions.
77
For some claims of disability discrimination, accommodation rights are
not available. The ADA Amendments Act specifically excludes claims of
discrimination based on the “regarded as” prong of the definition of
disability
78
from the accommodation right.
79
One justification for this
exclusion was that people who are only “regarded as” disabled are not in
fact disabled and should not need accommodations.
80
Less clear is whether
the accommodation right is available for people claiming ADA protections
based on their past record of disability
81
or their association with someone
75
. EEOC v. Wal-Mart Stores E. LP, 436 F. Supp. 3d 1190, 1202 (E.D. Wis. 2020).
76
. U.S. EQUAL EMP. OPPORTUNITY COMM’N, EEOC-NVTA-2003-1, WORK AT
HOME/TELEWORK AS A REASONABLE ACCOMMODATION (2003), https://www.eeoc.gov/laws/
guidance/work-hometelework-reasonable-accommodation.
77
. EEOC ENFORCEMENT GUIDANCE ON REASONABLE ACCOMMODATION, supra note 67
(“Certain considerations may be critical in determining whether a job can be effectively
performed at home, including (but not limited to) the employer’s ability to adequately
supervise the employee and the employee’s need to work with certain equipment or tools
that cannot be replicated at home.”).
78
. 42 U.S.C. § 12102(1)(C), (3) (“The term ‘disability’ means . . . being regarded as
having such an impairment.” (emphasis added)).
79
. Id. § 12201(h).
80
. See Roundtable Discussion: Determining the Proper Scope of Coverage for the
Americans with Disabilities Act: Hearing on Examining the Americans With Disabilities Act
(Public Law 101-336), Focusing on Ways to Determine the Proper Scope of Its Coverage
Before the Comm. on Health, Educ., Lab., and Pensions, 110th Cong. 8 (2008) (statement of
Chai Feldblum, Professor, Georgetown University Law Center) (asserting that Congress
initially introduced the “regarded as” language to refer to “those who are not limited by an
actual impairment but are instead limited by ‘society’s accumulated myths and fears about
disability and disease’”); see id. at 29 (statement of Andrew Grossman, Senior Legal Policy
Analyst, Heritage Foundation) (criticizing courts’ overbroad application of the “regarded as”
language).
81
. See 42 U.S.C. § 12102(1)–(3).
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14 OKLAHOMA LAW REVIEW [Vol. 74:1
who is a person with a disability, such as a child or a spouse.
82
With respect
to claims based on a record of a disability, the EEOC regulations provide
that employees may be entitled to accommodations “needed and related to
the past disability,” such as leave to attend follow up appointments with a
health care provider.
83
By contrast, the ADA has long been interpreted not
to extend the accommodation right to cases of associational
discrimination.
84
This interpretation stems from the statutory definition of
discrimination which includes “not making reasonable accommodations to
the known physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee.”
85
This
interpretation reads the dependent clause “who is an applicant or employee”
to preclude accommodation claims by employees because of the needs of
others, such as flexible work hours to attend to a disabled child. The
reasoning behind this limitation of the association right is that it is not the
person him or herself whose disability necessitates the accommodation for
success on the job. This interpretation is not, however, accepted by all
courts. At least one jurisdiction—California—has interpreted parallel
language in its state statute prohibiting disability discrimination in
employment to include the actual disability of a child as a disability of the
employee to which the accommodation right applies.
86
D. Undue Hardship
An accommodation is not reasonable if it would be an undue hardship
for the employer.
87
An undue hardship means a “significant difficulty or
expense”
88
when considered in light of factors such as cost, “overall
financial resources of the facility” involved in the accommodation, overall
82
. See, e.g., Den Hartog v. Wasatch Acad., 129 F.3d 1076 (10th Cir. 1997)
(recognizing congressional debate over application of the “association discrimination”
provision of the ADA).
83
. 29 C.F.R. § 1630.2(k)(3) (2020); see also EEOC v. Mfrs. & Traders Tr. Co., 429 F.
Supp. 3d 89, 106–07 (D. Md. 2019).
84
. See, e.g., Den Hartog, 129 F.3d at 1083–85.
85
. 42 U.S.C. § 12112(b)(5)(A).
86
. Castro-Ramirez v. Dependable Highway Express, 207 Cal. Rptr. 3d 120, 127, 131–
32 (Cal. Ct. App. 2016); see also Castro v. Classy, Inc., No. 19-CV-02246-H-BGS, 2020
WL 996948, at *3 (S.D. Cal. Mar. 2, 2020) (stating that plaintiff had sufficiently alleged a
failure to accommodate claim based on her son’s disability).
87
. See 42 U.S.C. § 12112(b)(5)(A).
88
. Id. § 12111(10)(A).
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financial resources and size of business of the employer as a whole, and the
type of operation of the employer.
89
Undue hardship is a defense on which the employer bears the burden of
persuasion.
90
The employer’s hardship claims must be supported by “an
individualized assessment of current circumstances” rather than
generalizations or fears.
91
However, certain types of accommodation
requests are highly likely to fail if the employer claims they are
unreasonable because of the hardship they impose. Requests that the
employer create a new or part-time position,
92
reassign burdensome
responsibilities to other employees,
93
or change schedules in a way that
would disrupt operations
94
fall into this category. Requests for indefinite
leave without a fixed return date are also highly likely to be found
unreasonable.
95
E. Direct Threat Defense
Employers may also assert the defense that the employee presents a
“direct threat.”
96
For example, an employee with intellectual disabilities
who may become aggressive in response to difficulties in meeting
production quotas could pose a direct threat in the workplace.
97
In asserting
the direct threat defense, employers may not rely on general claims or
stereotypes; a successful direct threat defense requires objectively
89
. Id. § 12111(10)(B).
90
. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 402 (2002).
91
. EEOC ENFORCEMENT GUIDANCE ON REASONABLE ACCOMMODATION, supra note 67.
92
. E.g., Smith v. Midland Brake, Inc., 180 F.3d 1154, 1174 (10th Cir. 1999) (“It is not
reasonable to require an employer to create a new job for the purpose of reassigning an
employee to that job.”).
93
. Gardea v. JBS USA, LLC, 915 F.3d 537, 542 (8th Cir. 2019) (“[A]ssistance from
other mechanics is not a reasonable accommodation.”).
94
. EEOC ENFORCEMENT GUIDANCE ON REASONABLE ACCOMMODATION, supra note 67.
Work-time differences that do not disrupt productivity may be reasonable, however. See,
e.g., Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1260 (11th Cir. 2007).
95
. E.g., Carpenter v. York Area United Fire & Rescue, No. 18-CV-2155, 2020 WL
1904460, at *6 (M.D. Pa. Apr. 17, 2020) (“[L]eave cannot be indefinite or open-ended; there
must be some expectation that the employee could perform his essential job functions in the
‘near future’ following the requested leave.”).
96
. 42 U.S.C. § 12111(3) (“The term ‘direct threat’ means a significant risk to the health
or safety of others that cannot be eliminated by reasonable accommodation.”).
97
. E.g., Denoewer v. Union Cnty. Indus., No. 2:17-CV-660, 2020 WL 1244194, at *5,
*14 (S.D. Ohio Mar. 16, 2020).
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16 OKLAHOMA LAW REVIEW [Vol. 74:1
reasonable individualized assessments of the nature of the threat.
98
The
possibility of contagion may be a direct threat, but only if the employer can
meet this standard of an individualized assessment.
99
Employers need not rely on the direct threat defense if the employee’s
misconduct would warrant the adverse action at issue.
100
Thus, an employee
who curses others because of frustration in meeting work expectations may
be terminated for violating workplace civility policies even if an
accommodation might have relieved the frustration and prevented the
outburst.
101
Although the statutory definition only refers to “threats to others,” the
Supreme Court has extended the defense to include significant risks to the
health or safety of employees themselves.
102
Individuals whose medical
conditions may be exacerbated by on-the-job exposures come within this
extension.
103
So might individuals who could be harmed because
performing their job is risky for them in a way it is not for others.
104
IV. COVID-19 and the ADA
The COVID-19 pandemic poses significant new challenges with respect
to disability discrimination in the workplace. Job qualifications and
delineations of essential job functions may change, as may contentions that
proposed accommodations are not reasonable. The undue hardship and
direct threat defenses may also be easier for employers to invoke under
pandemic conditions.
98
. E.g., Jarvis v. Potter, 500 F.3d 1113, 1122–23 (10th Cir. 2007); Lowe v. Ala. Power
Co., 244 F.3d 1305, 1308 (11th Cir. 2001); Nall v. BNSF Ry. Co., 917 F.3d 335, 342 (5th
Cir. 2019).
99
. E.g., Doe v. An Or. Resort, No. 98-6200-HO, 2001 WL 880165, at *6 (D. Or. May
10, 2001) (explaining that a defendant may challenge the employee’s qualifications if they
“pose a direct threat to the health or safety of other[s],” including a “contagious disease” that
is a “subsequent risk to others”).
100
. E.g., Felix v. Wis. Dep’t of Transp., 104 F. Supp. 3d 945, 953 (E.D. Wis. 2015).
101
. See Reeves ex rel. Reeves v. Jewel Food Stores, Inc., 759 F.3d 698, 700 (7th Cir.
2014).
102
. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 86 (2002).
103
. Id. at 76, 84–87 (considering the exacerbation of an employee’s Hepatitis C by on-
the-job exposures to refinery toxins).
104
. E.g., Darnell v. Thermafiber, Inc., 417 F.3d 657, 661–63 (7th Cir. 2005)
(considering a manufacturing employee with uncontrolled diabetes); Fortkamp v. City of
Celina, 159 F. Supp. 3d 813, 825–26 (N.D. Ohio 2016) (considering a lineman with a prior
back injury).
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Although there has been much discussion about these challenges, it is too
early in the pandemic for any reported decisions by courts. The EEOC has,
however, issued a number of documents about the impact of the pandemic
and disability discrimination in employment. This Part uses two primary
documents from the EEOC to illustrate the likely challenges for employees
with Down to be successful in claiming protections under the ADA.
In March 2020, the EEOC reissued a technical guidance document
(“EEOC Guidance”) about pandemic preparedness that was originally
created for pandemic influenza and updated to cover aspects of COVID-
19.
105
That document was based on knowledge of COVID-19 during the
first several months of the pandemic and cautioned that employers should
continue to follow evolving advice from public health authorities.
106
The
second document is a set of questions and answers about COVID-19 and
employment discrimination law (“EEOC Q & A”).
107
These documents
were supplemented by a webinar held in March 2020 (“EEOC Webinar”)
answering questions submitted in advance.
108
These materials have not
gone through the notice and comment rule-making process and hence may
not be legally binding on the EEOC.
109
A. Changes in Essential Job Functions and Employee Qualifications
To claim ADA protections, employees must be qualified to perform
essential job functions.
110
But COVID-19 has brought many changes to
workplaces that have altered job functions. Job functions once performed
on-site may be transferred to remote performance in the case of shutdowns,
105
. U.S. EQUAL EMP. OPPORTUNITY COMM’N., EEOC-NVTA-2009-3, PANDEMIC
PREPAREDNESS IN THE WORKPLACE AND THE AMERICANS WITH DISABILITIES ACT (2020),
https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-
disabilities-act [hereinafter EEOC, PANDEMIC PREPAREDNESS IN THE WORKPLACE].
106
. Id.
107
. What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and
Other EEO Laws, U.S. EQUAL EMP. OPPORTUNITY COMM’N (Dec. 16, 2020),
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-
act-and-other-eeo-laws [hereinafter What You Should Know About COVID-19 and the ADA].
108
. Transcript of March 27, 2020 Outreach Webinar, U.S. EQUAL EMP. OPPORTUNITY
COMM’N (Mar. 27, 2020), https://www.eeoc.gov/transcript-march-27-2020-outreach-
webinar.
109
. The role of guidance documents is controversial. Some see these documents as
helpful information to the public about how the agency will act; others are concerned that
these documents circumvent the formal rule-making process. Administrative Conference
Recommendation 2014-3: Guidance in the Rulemaking Process, 79 Fed. Reg. 35,992 (June
25, 2014).
110
. 42 U.S.C. §§ 12112(a), 12111(8).
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18 OKLAHOMA LAW REVIEW [Vol. 74:1
individual isolation, or quarantine. On-site, employees may be distanced
from one another or separated by shields to reduce the risk of disease
transmission. Employees may no longer be able to work together closely
and perform tasks as teams; instead, they may need to work separately and
independently. Personal protective equipment or barriers may be critical to
reducing pandemic spread but may also make communication among
employees more difficult. Employer needs may shift even from week to
week as pandemic restrictions rise and fall. With these shifting needs, some
job functions may be eliminated altogether for a period of time—there is no
need to greet customers or wash dishes when a restaurant is closed.
New functions may become necessary and existing functions may be
performed in different ways. Restaurants shifting to take-out and delivery
may require food delivery workers who can provide their own
transportation, for example. Employees also may be expected to take on
additional responsibilities for fellow workers who are ill or in required
quarantine, and to be cross-trained to be able to assume these
responsibilities. Part-time employees may be especially vulnerable to
resulting layoffs.
111
The EEOC Guidance, Q & A, and Webinar contain no direct discussion
of changes in essential job functions and hence whether employees may
continue to be qualified to perform them. Instead, essential functions are
discussed from the perspective of accommodations: it is not a reasonable
accommodation for an employee to be relieved of an essential job
function.
112
The example given by the EEOC is telework, which may have
been denied as a reasonable accommodation before the pandemic on the
judgment that on-site performance was an essential function. During the
pandemic, however, telework might become a reasonable accommodation.
Indeed, experience with telework may cast doubt on some employers’ prior
judgments about the need for employees to be present on-site. The EEOC
cautions employers that remote job performance during the pandemic could
be relevant to whether responsibilities can be performed successfully offsite
in the future.
113
111
. For example, Rudy Gobert, the Utah Jazz basketball player whose COVID-19
infection spurred cancellation of the NBA season, donated funds to support part-time
workers at the arena where the Jazz play to offset their layoffs. Rudy Gobert Donates
$500,000 to Part-Time Employees, COVID-19-Related Services in U.S., France, NBA (Mar.
14, 2020, 3:30 PM), https://www.nba.com/news/rudy-gobert-donates-500k-covid-19-related-
services.
112
. EEOC ENFORCEMENT GUIDANCE ON REASONABLE ACCOMMODATION, supra note 67.
113
. What You Should Know About COVID-19 and the ADA, supra note 107.
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This backwards way of addressing essential functions does not help in
determining whether an employer’s decision to redefine a job, temporarily
or permanently, is discriminatory, however. The EEOC materials do not
question the settled assumption that it is the employer’s prerogative to set
job expectations and employee qualifications, as long as they are job related
and consistent with business necessity.
114
At most, the employer is required
to state responsibilities clearly
115
and otherwise avoid discrimination.
The reality is that people with Down syndrome may have difficulty in
meeting pandemic demands for job performance. New functions may
require additional training. Shifting between tasks or exercising
independent judgment may strain capacities for executive functioning in
people with Down. People with Down may also feel disturbed by or be
unable to fully understand infection control practices or personal protective
equipment. Whether reasonable accommodations are available to enable
people with Down to perform these altered job functions will be the critical
turning point in determining whether they are qualified for the jobs they
have been performing or might seek.
An additional factor diminishing the job opportunities for people with
Down in the pandemic may be the reconstruction or elimination of jobs
such as greeters or shelf stockers when customers’ shopping patterns
change. In 2019, Walmart had already announced the elimination of greeter
positions in favor of expanded “customer host” roles that included
additional responsibilities such as lifting goods or checking receipts to
prevent shoplifting.
116
This announcement resulted in expressions of
concern about its impact on people with disabilities,
117
and Walmart has
since redesigned its program to shift responsibilities, adjust hours, and
respond to increased customer demand during the pandemic.
118
Walmart’s
114
. See 42 U.S.C. § 12112(b)(6).
115
. See id. § 12111(8) (“For the purposes of this subchapter, consideration shall be
given to the employer’s judgment as to what functions of a job are essential, and if an
employer has prepared a written description before advertising or interviewing applicants for
the job, this description shall be considered evidence of the essential functions of the job.”).
116
. Associated Press, Walmart Cuts Greeters and Adds a Job That’s Harder for
Workers with Disabilities, L.A. TIMES (Feb. 27, 2019, 3:20 PM), https://www.latimes.com/
business/la-fi-walmart-greeters-disabilities-20190227-story.html.
117
. Associated Press, Greeter Job Going Away, but Disabled Employees Are Not,
Walmart Says, NBC NEWS (Mar. 2, 2019, 9:14 AM), https://www.nbcnews.com/business/
business-news/greeter-job-going-away-disabled-employees-are-not-walmart-says-n978431.
118
. See Michael Sainato, Walmart Cuts Workers’ Hours but Increases Workload as
Sales Rise Amid Pandemic, GUARDIAN (Sept. 24, 2020, 5:00 PM), https://www.theguardian.
com/business/2020/sep/24/walmart-workers-hours-pay-great-workplace.
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20 OKLAHOMA LAW REVIEW [Vol. 74:1
program, which aims to create a more nimble workforce, features jobs with
expanded responsibilities, fewer leadership roles, and more cross-training
so that employees can readily cover for one another.
119
The ultimate impact
of these changes on people with intellectual disabilities remains to be seen,
but a likely hypothesis is that cross-training requirements alone will be
disadvantageous for these workers.
B. Re-evaluation of Reasonable Accommodations and the Undue Hardship
Defense
COVID-19 appears to be shifting the landscape of accommodation
requests. The most obvious shift is the desire of many employees to work
from home to reduce infection risks for themselves or their high-risk loved
ones.
120
The EEOC Guidance document on the influenza pandemic, updated
for COVID-19, states that high-risk employees “may request telework as a
reasonable accommodation to reduce their chances of infection during a
pandemic.”
121
Telework, however, is only practical for some jobs.
Moreover, discussions of the reasonableness of telework strongly suggest
that as the pandemic situation shifts, the reasonableness analysis may shift
as well.
122
Workers who must be on-site may request accommodations, such as one-
way aisles or barriers between employees and customers, to reduce the
possibility of exposure.
123
Increased stresses of the pandemic may be the
impetus for accommodation requests, particularly by employees whose
disabilities make stress difficult to manage.
124
Other accommodation
requests may come with changes in job responsibilities as employees
request help in, or relief from, functions made difficult by their disabilities.
As described above, accommodations that involve relief from essential job
119
. Jon Springer, Walmart Details Sweeping Restructure of Its Supercenter Workforce,
WINSIGHT GROCERY BUS. (Sept. 18, 2020), https://www.winsightgrocerybusiness.com/|
retailers/walmart-details-sweeping-restructure-its-supercenter-workforce.
120
. See Tracie DeFreitas, The ADA and Managing Reasonable Accommodation
Requests from Employees with Disabilities in Response to COVID-19, JOB ACCOMMODATION
NETWORK (Jan. 3, 2020), https://askjan.org/blogs/jan/2020/03/the-ada-and-managing-
reasonable-accommodation-requests-from-employees-with-disabilities-in-response-to-covid-
19.cfm.
121
. EEOC, PANDEMIC PREPAREDNESS IN THE WORKPLACE, supra note 105.
122
. What You Should Know About COVID-19 and the ADA, supra note 107.
123
. Id.
124
. Id.
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functions are unreasonable;
125
employees who cannot perform essential
functions are not qualified for the jobs in question.
The EEOC documents are clear that accommodations during the
pandemic may be met with the defense that they are an undue hardship.
Accommodations that were not a hardship before the pandemic may
become far more burdensome during the pandemic.
126
For example, it may
be more disruptive to allow employees to have time off if they are needed
to cover for others who are out sick or quarantined.
127
If employers’
revenue is decreased during the pandemic, or expenses are increased by, for
example, the need to purchase protective equipment, the sheer costs of an
accommodation may be unreasonable.
128
Because of their increased risks from COVID-19, employees with Down
may request accommodations to reduce their risk of exposure. In fact,
without such accommodations there is a possibility that employers might
consider Down employees’ continuing to work on-site a direct threat,
129
as
discussed below.
130
Yet at least some of these accommodations might not
be feasible or might increase workplace risks in a way that would create an
undue hardship. For example, the EEOC makes clear that employers may
implement recommended infection control practices during a pandemic.
131
These practices may include wearing personal protective equipment.
132
Without personal protective equipment, employees might themselves be at
greater risk or place others at greater risk of infection transmission. But an
employee with Down might not understand how to wear protective
equipment properly or might need special training or job coaching
assistance to accomplish needed protection. If the employee must be
reminded frequently about how to wear the equipment, this might distract
from other employees’ ability to perform their jobs or might require the
presence of an additional person on-site. More people on-site could make
social distancing more difficult and, on this basis, might be an undue
hardship as well. Even when employees with Down are able to pay for their
job coaching, the mere presence of the coach as an additional person in the
workspace may be a hardship when, absent the pandemic, it would not be.
125
. Id.
126
. Id.
127
. See id.
128
. See id.
129
. Id.
130
. See discussion infra Section IV.C.
131
. EEOC, PANDEMIC PREPAREDNESS IN THE WORKPLACE, supra note 105.
132
. Id.
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22 OKLAHOMA LAW REVIEW [Vol. 74:1
The threshold difficulty for employees about whether they have rights to
accommodations at all also may have important consequences for people
with Down. As discussed above, the dominant view excludes claims for
accommodations based on associational discrimination.
133
The EEOC
pandemic documents reiterate this exclusion.
134
The exclusion rules out
accommodation requests both by people who wish to avoid exposing their
family members with Down and those who may need additional time off as
caregivers for people with Down who can no longer attend school or day
programs.
Caregivers for individuals with Down will also be unable to claim
accommodation rights to help people with Down contend with their own
work challenges. For example, a parent of a working adult child with Down
could not seek accommodations for the time needed to help their child learn
new job responsibilities or how to use protective equipment. Excluding
these claims of associational discrimination from the accommodation right
ignores the fact that many people have been unwilling to take on-the-job
risks of COVID-19 infection that might in turn infect their loved ones at
serious risk from the disease.
In Chicago, for example, many schoolteachers reportedly took unpaid
leave when they were denied accommodations or leave because of concerns
about infecting someone in their household vulnerable to COVID-19.
135
Other school districts have also limited accommodation rights claims based
on association to vacation leave, short term leave without pay, or other
personal leave.
136
Commentators have pointed out that this may be unwise
employment policy, as an employer who has granted similar
accommodation rights to other employees in the past might still be
133
. See supra notes 82, 84–86 and accompanying text.
134
. What You Should Know About COVID-19 and the ADA, supra note 107; Transcript
of March 27, 2020 Outreach Webinar, supra note 108.
135
. Elyssa Cherney, CPS Denies COVID-19 Accommodations to Hundreds of Teachers
and Staff Who Are Due to Return to Schools Monday, CHI. TRIBUNE (Dec. 29, 2020, 3:53
PM), https://www.chicagotribune.com/coronavirus/ct-covid-19-illinois-chicago-public-
school-teachers-20201229-mncckgdyvfcl3atk7jfk3vwama-story.html. The district reportedly
intended to provide weekly testing for employees with at-risk household members and
exemptions for employees who serve as primary caregivers for individuals with high-risk
medical conditions.
136
. Granite School District in Utah is an example. See GEA AdvoCats, FAQs – Leave
and COVID-19, GRANITE EDUC. ASS’N (June 30, 2020), https://www.gea-ut.org/gea-
news/archives/06-2020.
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2021] INTELLECTUAL DISABILITIES DURING THE PANDEMIC 23
considered discriminating on the basis of disability by failing to grant
accommodations for associational discrimination during COVID-19.
137
C. Medical Examinations, Vaccination, and the Direct Threat Defense
The EEOC materials devote by far the most attention to medical
examinations and the possibility that employees may be direct threats to
themselves or others. This possibility may arise because employees are
actually ill, have been exposed to illness, or are at high risk of serious
illness or death from infection.
Reducing the threat of disease spread within a workplace is an important
aspect of workplace safety. All the EEOC documents are clear that
employers may ask employees coming into the workplace whether they
have COVID-19, have symptoms of COVID-19, or have been tested for
COVID-19.
138
Employers may also ask whether employees may have had
contact with someone who is ill with COVID-19.
139
Employers may even
require COVID-19 testing of employees before entering the workplace to
determine whether they pose a direct threat to others.
140
Employers may direct these requirements to particular employees if they
have objective reason to believe that the employee might be ill with
COVID-19—for example, an employee with a noticeable cough.
141
The
EEOC materials do not discuss what an employer may do if an employee is
unable to answer any of these questions, as might be the case for an
employee with an intellectual disability such as Down. It is possible that
employees with Down, therefore, might be subject to increased scrutiny
from employers in a manner that could target or discriminate against them.
It is also likely that at least some forms of testing for COVID-19 might be
disturbing to people with intellectual disabilities who cannot understand
what is happening to them.
Vaccination mandates are also given considerable attention by the EEOC
materials. The EEOC Guidance states that employees have a right to be
exempt from vaccination mandates if they have a disability that prevents
137
. Jon Hyman, Must You Accommodate an Employee with a High-Risk Family
Member?, WORKFORCE.COM (June 23, 2020), https://www.workforce.com/news/must-you-
accommodate-an-employee-with-a-high-risk-family-member.
138
. What You Should Know About COVID-19 and the ADA, supra note 107. Any
information is, however, subject to the confidentiality requirements of the ADA.
139
. Transcript of March 27, 2020 Outreach Webinar, supra note 108.
140
. What You Should Know About COVID-19 and the ADA, supra note 107.
141
. Transcript of March 27, 2020 Outreach Webinar, supra note 108.
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24 OKLAHOMA LAW REVIEW [Vol. 74:1
them from being vaccinated.
142
The EEOC treats this right as an
accommodation, so vaccination exemptions could be subject to the
argument that they are not reasonable or are an undue hardship. The
employer might make claims of hardship if an unvaccinated employee
could pose risks to others, for example customers, and it is important for the
employer to be able to represent to the public that all on-site employees
have been vaccinated.
Evidence is incomplete about the efficacy of COVID-19 vaccination in
people with Down. People with Down are included in the U.S. CDC
recommendations for vaccination prioritization as people with underlying
medical conditions that increase their risks of severe COVID illness.
143
Because of differences in their immune systems, some vaccinations may be
less effective in people with Down.
144
To date, moreover, there is limited
safety data about whether people with compromised immune systems are at
any increased risk from the COVID vaccines currently approved for use.
145
People with Down are, however, at increased risk from COVID-19. As a
result, employers are likely to consider whether continuing to work
constitutes a direct threat for employees with Down. If immunization is
imperfect, or if a person declines the vaccine for safety reasons, employers
may worry that employees with Down who are on-site pose risks to
customers. Employers may also be concerned that the employees with
Down may become infected themselves and seriously ill.
These concerns must be supported by objective evidence and an
individualized assessment, along with consideration of whether reasonable
accommodations are available.
146
Given the information that is currently
available, however, it seems likely that an employer could argue that
allowing on-site presence of employees with Down creates a direct threat to
themselves, especially if these employees have difficulties managing
personal protective equipment such as masks.
142
. EEOC, PANDEMIC PREPAREDNESS IN THE WORKPLACE, supra note 105.
143
. Medical Conditions, CDC (May 13, 2021), https://www.cdc.gov/coronavirus/2019-
ncov/need-extra-precautions/people-with-medical-conditions.html.
144
. Dean Huggard & Eleanor J. Molloy, Question 1: Do Children with Down Syndrome
Benefit from Extra Vaccinations?, 103 ARCHIVES DISEASE CHILDHOOD 1085 (2018).
145
. Medical Conditions, CDC (May 14, 2021), https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/recommendations/underlying-conditions.html.
146
. What You Should Know About COVID-19 and the ADA, supra note 107.
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2021] INTELLECTUAL DISABILITIES DURING THE PANDEMIC 25
V. Employees with Down in a Pandemic: The ADA and Beyond
This Article has identified four particularly critical challenges for
employees with Down in the COVID-19 pandemic. These challenges are:
● Many of the kinds of jobs these employees hold are limited-task,
part-time, or require on-site presence. It is likely that essential
functions of these jobs will change and employees may no
longer meet job qualifications, even with accommodations.
● Accommodations that were reasonable before the pandemic may
no longer be so if they now present a hardship to employers with
increased costs, decreased revenue, or fluctuating workflow.
● The direct threat defense may be invoked if employees with
Down have difficulty using protective equipment or are unable
to be immunized as successfully as others and, thus, their
continued on-site presence risks serious illness for themselves or
transmission to others.
● Caregivers who may not claim accommodation rights because of
their association with people with Down will face the choice
between continuing to work or taking unpaid leave; if they
continue to work, their own exposure may increase the risk to
people with Down. In addition, caregivers continuing to work
will not be available to help people with Down navigate their
own job challenges.
These challenges are real. Importantly, they present in direct and
concentrated form challenges that are apparent for people with Down
outside of pandemic times and that contribute to the low employment rates
of people in this population. Two different kinds of strategies may be
available to address these challenges.
One strategy would address possible changes in how courts have
interpreted the ADA. The doctrine that employees claiming associational
discrimination are not entitled to accommodations is the result of court
decisions interpreting the language of the ADA. The determination that
threats to self are included in the direct threat defense is the result of the
Court’s much-criticized Echazabal decision. Courts could undo these
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26 OKLAHOMA LAW REVIEW [Vol. 74:1
decisions, or Congress could entertain new amendments to the ADA as it
did in 2007 with the ADA Amendments Act.
147
Another kind of strategy would move beyond the ADA, to
reconsideration of many aspects of how work is constituted in the United
States. This Article highlights several aspects of particular concern. The
United States lacks comprehensive paid family and medical leave either for
family members or workers themselves who for medical reasons should
avoid exposure to disease. The absence of these protections is particularly
apparent for part-time workers. The United States also lacks a
comprehensive program for retraining workers or reallocating job
responsibilities in light of crises such as the COVID-19 pandemic. Instead,
U.S. anti-discrimination law places the costs of addressing these issues
largely on employers, with the result that otherwise reasonable
accommodations may constitute undue hardships.
The benefits of serious attention to these strategies will reach far beyond
people with Down during COVID-19. However, the challenges faced by
people with Down in the pandemic shine harsh light on the limitations of
U.S. employment discrimination law in its current form.
147
. See generally Alex H. Glaser, The Americans with Disabilities Act Amendments Act:
Legal Implications and the Effect on Employer-Employee Relationships, 59 LA. BAR J. 94
(2011) (discussing changes stemming from the ADA Amendments Act).
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