The ADA Isn’t Enough: During A Mass Disabling Event, Workers Need Unions

This year marks the 34th anniversary of the Americans with Disabilities Act (ADA), the landmark civil rights legislation that sought to prohibit discrimination against disabled people in employment and public services. It is also the fifth year of a pandemic that experts have deemed a mass-disabling event. Many of those infected with SARS-CoV-2, the virus that causes COVID-19, continue to experience symptoms for months or years. A new report from the National Academiesdefines Long COVID as “an infection-associated chronic condition (IACC) that occurs after SARS-CoV-2 infection and is present for at least three months as a continuous, relapsing and remitting, or progressive disease state that affects one or more organ systems.” Long COVID may affect between ten and thirty percent of those who have had COVID-19.

The number of disabled working-age people in the US has increased since the pandemic began, though the scope of Long COVID’s contribution is not entirely clear. Studies suggest that Long COVID may impose a sizeable work burden and play an underappreciated role in keeping people out of the labor market. It remains to be seen how many of those with Long COVID will recover, to what extent, and what effect future waves may have. However, some health experts have expressed concern that the ongoing and now largely unmitigated spread of COVID-19 risks disabling a substantial portion of the workforce.

The ADA offers some protections for workers who experience Long COVID, though the extent and enforcement of those protections may vary. Under the ADA, a person is considered disabled if they (1) have a physical or mental impairment that substantially limits one or more major life activities, (2) have a record of such an impairment, or (C) are regarded as having such an impairment. Many people with Long COVID meet this definition, with nearly 80 percent stating that the condition limits their daily activities. But while Long COVID may be considered a disability under the ADA, many sufferers find it difficult to secure a diagnosis to substantiate their disability claim.

Under the ADA, employers must provide reasonable accommodations to qualified workers with disabilities. In practice, however, employers and employees may not see eye-to-eye on what is reasonable. When employers fall short, the burden of enforcement typically falls on the disabled worker. Individual litigation can be especially difficult for those suffering from energy-limiting chronic illnesses like Long COVID.

Even for employers who do their best to follow the law, the accommodations framework presents its own challenges. Those with chronic illnesses like Long COVID may not know what accommodations they need, especially if the type and extent of their activity limitations fluctuate. While the ADA is a vital resource, it is limited in its ability to direct and foster the kinds of supportive work environments that would help those with Long COVID and other chronic illnesses thrive in their jobs.

The ADA primarily protects workers who already have a disability from discrimination. Protecting workers from becoming disabled is beyond its scope; this falls mainly to the Occupational Safety and Health Administration (OSHA), which, in the case of infectious diseases, is influenced by guidance from the Centers for Disease Control and Prevention (CDC).

Unions offer one possible remedy. In a forthcoming paper, we find that union representation carries a 17.7 percent wage premium for workers with disabilities, who otherwise face a more substantial wage penalty in addition to higher costs associated with their disability. Union representation is also associated with increased access to employer-sponsored health insurance and retirement coverage for disabled workers, by 40.4 percent and 54 percent, respectively. (Figure 1)

Figure 1*

Union workers are also more likely to have paid sick leave, which helps limit disease spread and gives workers more opportunity to rest and recover when they’re ill. The latter is especially important, given the link between inadequate rest in the acute stage of COVID-19 and the development of Long COVID.

Unions can also supplement the ADA by providing disabled workers with additional ways to secure their rights. Collective bargaining agreements can reiterate aspects of the ADA and establish workforce norms based on universal design principles. Such an approach can reframe some “reasonable accommodations” as universal benefits for all staff. By enforcing such contracts, unions can both empower disabled workers on the job and hold employers accountable for workplace discrimination.

Unfortunately, the erosion of the labor movement means that fewer disabled workers have access to the benefits of a union job. And while the ADA is an important tool, it must be supplemented with other forms of support for disabled workers. Workers advocating collectively for the rights and dignity of those with disabilities is essential, and unions are an obvious vehicle for them to do so.

Securing economic justice for workers with disabilities — including those with Long COVID and other chronic illnesses — will require more than just the ADA. Unions have an important role to play in advocating for the growing ranks of workers with disabilities. However, their effectiveness hinges on the revitalization of a robust, fighting labor movement that embraces disability justice as a core part of its mission.

*A version of this figure also appears in the author’s forthcoming publication about the union advantage for workers with disabilities.

This first appeared on CEPR.

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