It's working! Regarded As ADA Claims Are Being Litigated.
ABSENT INTENT OR AUTHORITY AS LEGAL ADVICE.
I presented the layout of the “regarded as” claim at the beginning of COVID. I’ve helped numerous employees document that their employer, by implementing mask and vaccine mandates, are regarding the employees as disabled.
Today, Coffee and Covid mentioned this as something that lawyers are litigating!
From Coffee and Covid:
“There is a small but well-developed set of case law holding that employers can’t just assume that a healthy employee is sick simply because they are in some at-risk category. Consider the case of an employer treating a healthy gay person as having AIDS and requiring them to work from home or something. That’s not fair. It turns out that kind of differential treatment violates the Americans with Disabilities Act.
After having documented these cases for employees for a while now, it is necessary to point out that just pursuing the “regarded as” claims after being fired is not ideal.
First, an employer can plausibly get out of an ADA claim if the disability matter is not “readily apparent”. This is why it is important to document the claim BEFORE being fired, even if it is the last day of employment. Invoking the ADA puts a huge burden on the employer that didn’t previously exist, if the disability matter isn’t “readily apparent.”
Second, there are additional claims to make directly to the employer, such as the employer’s policy causes another disability because it substantially impairs the major life activities of interacting with others, working, caring for oneself, and others.
See, the ADA, Title I doesn’t “require” a doctor’s note to establish a disability. It allows the employer to make reasonable inquiries, and ask for reasonable support for the claim (under prongs one and two - NOT for regarded as claims), but they can’t require a doctor’s note. It is obvious that the medical industry is siding with Pharma on this, because they are being incentivized to do so, and disincentivized from bucking the program. This can be proven in court, with the right questions.
But documenting this, especially with an ADA Advocate, is documenting the remedy available in the ADA.
Plus, I’ve helped several people document that the employer policy, and its enforcement have created a disability, using medical documentation.
I’m thankful that the “regarded as” piece is being taken up on litigation, but it may be too late, if the employee didn’t invoke and document it before being terminated.
P.D., JAY V SHORE, As Certified ADA Advocate