Progress after Pandemic

New Challenges and Solutions in Disabled Workers’ Rights after COVID-19

By Alyssa-Rae McGinn

Law Students on Workers’ Rights Series

The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What are the biggest challenges facing workers’ rights in the future?”

The disabled community in the United States has long advocated for changes to employer policies and employment laws in order to increase access to gainful employment. Many disabled people have been unable to remain in the jobs for which they are trained or maintain any job at all due to inflexibility, lack of options for working from home, and inadequate paid sick leave, including ineligibility for benefits through the Family and Medical Leave Act. 

Since the beginning of the COVID-19 pandemic in January 2020, it has become clear to many outside of the disabled community that workers are not adequately accommodated or protected by existing employer policies and employment laws related to accessibility. In the present moment, it is evident that these policies and laws not only impact those with disabilities, but they have and will continue to impact those who are immunocompromised or otherwise at greater risk of infection from a disease like COVID-19. 

The ongoing pandemic and its aftermath will create the need for greater accessibility for disabled workers, and present new challenges in the fight to protect the rights of all workers.

Because of the lack of sufficient policies and laws protecting workers, many have been left with impossible choices. Some workers have had to choose between putting themselves or their family members in harm’s way or forgoing an income. Others have struggled with sacrificing an entire year’s worth of paid leave without knowing whether they will need time away from work during the rest of 2020. 

Those who are unable to cease working onsite or are deemed essential are put at risk of infection every day, and many employers have refused to provide adequate personal protective equipment and sanitary conditions. And, for those who do become sick, employer policies and employment laws often do not protect them from losing income, losing their insurance, or losing their jobs altogether while they convalesce.

These challenges facing workers will only increase as we move forward from this pandemic. For one, a 2020 study from Di Wu et al. at the Wuhan Institute of Virology has demonstrated that patients are showing long-term medical issues as a result of a COVID-19 infection, including permanent lung damage, liver damage, neurological symptoms, and other post-viral symptoms. 

With most of the United States population expected to contract COVID-19, even a small percentage of cases resulting in long-term medical conditions will add tremendously to the disabled population. In addition, many of those with pre-existing or COVID-19-related immunodeficiencies will continue to be at risk long after quarantine measures are lifted. They and their caretakers will continue to require accommodations to ensure safety and health. 

Finally, we must be prepared for the likely possibility of a resurgence of COVID-19 infections, even after quarantine measures are ended. Based on all these factors, workers will continue to require protections such as long-term paid sick leave, work-from-home and flexible arrangements, and other accommodations from employers, even when this pandemic is far behind us.

While workers are already considering the impact of these challenges on their lives, the onus is on employers and lawmakers to think about expanding the accessibility measures that have been offered to some workers during this pandemic. 

This crisis has demonstrated that we already have the resources and tools to make many jobs more accessible for the disabled and the ill, and the end of the crisis should not mean the end of accessibility in these jobs. Employers who are now able to offer accommodations should continue to do so, both for their current employees and in order to open access for other and newly disabled potential employees. And, employers and lawmakers need to think about leveraging technology and other resources to allow essential workers to have the same options. 

Finally, lawmakers need to ensure there are strong protections in place for people who must leave work, temporarily or permanently, so that they are still able to access medical care, navigate assistance programs, and afford their basic needs.

As Arundhati Roy wrote in Financial Times, “Historically, pandemics have forced humans to break with the past and imagine their world anew.” As we flatten the curve, lift quarantines, and move past this pandemic, it is imperative that we consider the ways that our world of work changed to accommodate some workers’ need to stay at home, and the ways that it failed to do so for others. 

Facing an increasing population of disabled workers and workers who require accommodations, employers and lawmakers will need to answer the call to use what we are learning now to improve worker protections. 

The COVID-19 pandemic has shown us the faults and gaps in many of our systems, including our approach to accessibility in the workplace, and it has provided an opportunity to ensure that future workers are able to fully exercise their right to meaningful, safe, and fair work.

Reflections from Charles Joseph

Unfortunately, workplace discrimination remains a major problem for workers across the country. And as COVID-19 continues to sweep the world, more workers will need the protections offered by disability discrimination laws, as Ms. McGinn forcefully argues. McGinn’s essay provides a cogent reminder that the pandemic offers an opportunity to remedy today’s inadequate protections. The thoughtful, timely perspective McGinn’s essay offers is one reason McGinn won the Charles E. Joseph Employment Law Scholarship for the 2020/2021 academic year. 

Alyssa-Rae McGinn holds a master’s in English from St. John’s University and works as a Title IX and Civil Rights investigator. In the fall, she will join Syracuse University’s College of Law as part of the class of 2024. McGinn is the winner of the Charles E. Joseph Employment Law Scholarship for the 2020/2021 academic year. Contact McGinn on LinkedIn or Twitter. 

Charles Joseph has over two decades of experience as an NYC employment lawyer. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $140 million for clients.