A Hole in the ADA

Jennifer E. Engen

I read the Inside Higher Ed story about the professor who claims he was fired for refusing to teach in person and winced. I can see exactly how that could happen. It has to do with the way the Americans With Disabilities Act is written.

To be clear up front, I have no inside information on the particular case and therefore can’t take a position on it. This is about how a college administration might read an analogous case.

When colleges started resuming in-person classes, faculty responded in different ways. Some were happy to get back to the physical classroom right away and put Zoom behind them. Some came back tentatively. Some really didn’t want to come back yet. But you can’t build a schedule around a swirl of individual faculty preferences; you have to build it around anticipated student needs and then fill in names. At some point, the classes that exist need to be staffed.

Within departments, too, there’s an issue of equity. Absent some sort of rule, junior faculty may not feel (or be) empowered to object if senior faculty hoard the online sections (or the in-person ones, for that matter) for themselves. So a pretty standard move was to have a default rule—outside of special cases, all full-time faculty must teach at least X classes in person—in hopes of establishing a baseline of fairness.

The Americans With Disabilities Act has long offered a basis for exceptions to certain work rules. An employee who presents appropriate documentation from a qualified medical professional attesting to a disabling condition is entitled to reasonable accommodations. Much ink has been spilled on defining “reasonable” in this context; I won’t rehash that here. The issue that comes up repeatedly during COVID is the definition of disability.

The ADA defines a disability as something that interferes with daily life activities—eating, sleeping, walking. A compromised immune system doesn’t fit that definition.

From an administrative perspective, an employee requesting an exception to a rule about being on campus for a set amount of time, and who doesn’t have a disability as the ADA defines it, presents a quandary. In the individual case, it may make intuitive sense. But once you’ve opened the door to exceptions beyond the ADA, you’d better be prepared to codify the criteria pretty quick, or you’re opening yourself up to claims of disparate treatment. “Why was his request granted and mine denied?” is a valid and predictable question. It requires an answer you can defend in public.

It’s easy to condemn HR departments for failing to plug the hole in the law, but it’s also unfair. If they grant some non-ADA requests and deny others, they’re opening themselves up to lawsuits. If they grant every request, the college would quickly become unmanageable. Hewing to the ADA and denying anything that doesn’t fit it is their only practical option.

From an employee perspective, of course, that can sound like a lot of blame-shifting. If I’m immunocompromised and I have a child too young to be vaccinated, then my fear of being on campus during a pandemic may be well founded. Being told that it doesn’t fit a definition written 30-plus years ago isn’t much comfort.

My request to lawmakers, then, is to take a fresh look at the ADA in the context of immunocompromised people in a pandemic. Fix that rule federally, and HR departments around the country can handle these cases much more humanely. Until then, every time a pandemic strikes, we’re going to get variations on this dilemma, sometimes with terrible consequences.


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