The Glaring Dumpster Fire in Employment ADA

It's time to call this out.

ABSENT INTENT OR AUTHORITY AS LEGAL ADVICE.

Title I of the ADA requires employers to allow employees to use the protections of the ADA. It also prohibits employers from interfering with employees that are exercising and enjoying ADA protections. And the EEOC guidance says that “issuing a policy or requirement that purports to limit an employee's rights to invoke ADA protections” is interference.

Until today, I had been using this provision to point out that companies that ONLY offer medical or religious exemptions (which are not found in the ADA) are interfering, according to EEOC guidance.

And then it hit me.

EVERY company I have interfaced with so far, in this COVID bullshit has had forms for ADA requests for accommodation. Understand that this falls under the first two prongs of the definition of disability, “actual disability” and “record of” disability. These two prongs can ask for reasonable accommodation from an employer. And that’s good.

But what hit me today is that the third prong of the definition of disability - the “regarded as” prong, has been obscured from the employee across the board.

The Regarded As Prong

The regarded as prong is when an employer treats someone as if they are disabled. COVID is a prime example. Employers with mandates are regarding employees as disabled, with deficient immune systems.

With the invocation (claim) of the regarded as prong, there are all kinds of protections still included, even though asking for reasonable accommodation is eliminated. There is discrimination, there is the prohibition on coercion, intimidation, threats, harassment, and interference. And the fact that employers don’t provide a policy for invoking, reporting, or remedying claims of being “regarded as” is, by EEOC definition, INTERFERING.

See, no employer wants to deal with the ADA anyway. But the apparent position is that keeping it to requests for accommodation is all there is. NO. NO. NO.

Regarded as claims and the protections that accompany this, have been eliminated from the offerings of EVERY EMPLOYER I’ve dealt with. EVERY ONE OF THEM.

This means that their policy, the policy that only includes access and remedy for the first two prongs? It PURPORTS TO LIMIT AN EMPLOYEE’S RIGHTS TO INVOKE ADA PROTECTIONS (UNDER THE REGARDED AS PRONG).

I’m astounded that this is actually the case, but it is. And this can upend the bullying that is going on, IF it is capitalized upon.

P.D., JAY V SHORE, as Certified ADA Advocate

adarights [at] protonmail [dot] com.