By Katherine Macfarlane
Workplaces are, by and large, no longer safe for employees who are high-risk for serious illness or death from COVID-19.
During the early months of the COVID-19 pandemic, it was common for workplaces to require masks, at least in shared spaces. Two years later, though the pandemic is still ongoing, mask requirements are now far less prevalent as a result of the politicization of masks, so-called mask fatigue, and new guidance from the U.S. Centers for Disease Control and Prevention (CDC).
This move to relax masking rules presents significant dangers to those most vulnerable to severe outcomes from COVID-19. High-risk employees still need their co-workers to wear masks. They must now negotiate for safe workplaces in a social and political climate that is increasingly indifferent (or actively hostile) to their needs.
What will this negotiation look like? Federal disability law provides some guidance. A person who is high-risk for serious illness or death from COVID-19 is likely entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA), including one that requires their co-workers to wear masks in their presence. Under the ADA, reasonable accommodations allow people with disabilities to enjoy equal opportunities.
The Eighth Circuit recently held that the ADA permits public schools in Iowa to enforce mask mandates as reasonable accommodations for high-risk students with disabilities. Requiring others to wear masks, the court explained, “is not an unreasonable infringement on third parties’ rights.” Doron Dorfman and I have argued that the Fifth Circuit should reach the same conclusion with respect to high-risk children with disabilities in Texas. Moreover, employers cannot pre-determine a response to all masking accommodation requests. In other words, under the ADA, employers cannot adopt a policy of blanket denial. Instead, they must consider if each individual masking accommodation request is reasonable on a case-by-case basis.
No workplace is free of mask drama, even the Supreme Court. On January 21, NPR’s Nina Totenberg broke the news that Justice Sonia Sotomayor, who has diabetes and is high-risk for death or serious illness from COVID-19, was participating in oral argument and the justices’ conferences from her chambers. “Sotomayor did not feel safe in close proximity to people who were unmasked,” Totenberg reported, and Chief Justice John Roberts, “understanding that, in some form asked the other justices to mask up.” Justice Neil Gorsuch, whom Justice Sotomayor sits next to on the bench, was the only justice not wearing a mask during January’s oral arguments.
Though this could be read as a disagreement representative of the country’s political divide, as seen through a disability lens, what happened to Justice Sotomayor happens often to high-risk people with disabilities. Their safety depends on their co-workers’ willingness to mask up, but they may work with co-workers who refuse to do so.
The Totenberg story quickly began to shift. Chief Justice Roberts issued a statement that he “did not request Justice Gorsuch or any other Justice to wear a mask on the bench.” A joint statement from Justices Gorsuch and Sotomayor followed: “Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends.” But Totenberg did not state that Sotomayor made the request and stood by her reporting that Roberts had “in some form” asked the justices to wear masks.
Even these new details are consistent with the complex way people with disabilities navigate accommodations at work. Those with the power to require others to comply with accommodations do not always do so. Disabled employees must decide if they want to fight for an accommodation themselves, work unaccommodated, or quit. There is reason to make nice. A disabled employee may want to stay on their unmasked co-worker’s good side, if, for example, they need that co-worker’s vote.
Of course, Justice Sotomayor might have called in to oral argument for reasons that have nothing to do with her disability or Justice Gorsuch. But if she did isolate herself because of her disability, her exclusion was not, as some have suggested, a reasonable accommodation. We have not achieved equality when people with disabilities are the only ones working alone in their offices while everyone else gathers in a conference room.
Unfortunately, the ADA does not reach every workplace. In University of Alabama v. Garrett, the Supreme Court held that employees with disabilities cannot recover damages against state employers who engage in disability discrimination. A disabled state employee could seek an injunction requiring co-workers to wear masks, but that remedy is far too impractical to have real bite. The ADA also does not apply to the federal courts. Without the ADA’s reasonable accommodation requirement, high-risk people with disabilities working in the federal courts have little legal protection.
Even if the letter of the ADA does not reach every workplace, its spirit should. Employers with high-risk workers should keep their masking requirements in place. If an employee refuses to comply with a mask mandate, a supervisor should step in, no matter how controversial masking has become or how difficult the confrontation promises to be. Leadership requires more than conflict avoidance.
Keeping high-risk people with disabilities integrated into the workplace is just as important as keeping everyone else there in person. The presence of high-risk people with disabilities simply requires others to continue to wear masks for the foreseeable future. This is a relatively minor adjustment — and one that we are relatively accustomed to by now. Isn’t masking in our presence a small price to pay for keeping us around?
Katherine Macfarlane is an associate professor of law at the Southern University Law Center and is Chair of the AALS Section on Disability Law.