I thought I would do a different kind of blog entry this week. Last week, I attended a zoominar (should I trademark “zoominar?”:-), on issues facing persons with disabilities in light of the Covid-19 pandemic. It was put on by Steve Gordon an Assistant Attorney General in the Eastern District of Virginia. I was very impressed how clued in he was to the disability community. He had lots of different elements of the disability community speaking. The blog entry today is divided into the following categories: issues noted on call; statistics; and thoughts/takeaways. I’m figuring that the reader is probably going to want to read the whole thing.
Issues Noted on Call (these are all issues that persons with disabilities are facing with the Covid-19 pandemic):
- Compliance with effective communication rules;
- Healthcare facilities not allowing people with disabilities to bring their support people with them;
- Accessibility of telehealth visits for those with vision impairments and the deaf, Deaf, and hard of hearing communities;
- Accessibility of distance learning;
- Accuracy of auto captioning and captioning in general;
- Drive-up services;
- Inaccessibility of retail stores;
- Employers needing to adjust for employees who are at high risk or whom associate with high risk individuals;
- Healthcare rationing;
- Reasonable modifications where close contact is required for certain programs, services, and activities.
- Accessibility of higher education when education is remote in part or completely;
- Return to work issues;
- Accessibility of K-12 to persons with disabilities when education is remote in part or completely;
- Digital accessibility;
- Accessibility of Covid-19 briefings to Deaf* individuals and qualifications of interpreters;
- Excessive use of VRI (not a new problem);
- Telework as a reasonable accommodation.
- Return to school for persons with disabilities with underlying conditions (students or faculty).
*A culturally deaf individual is a person meeting the following criteria: 1) ASL is their first language; 2) attended a school for the deaf; and 3) is severely to profoundly hard of hearing. I myself have #3 but not the other two.
As you can see, accessibility issues are everywhere. Also, this list is by no means exclusive.
One of the publications that I subscribe to is Disability Compliance For Higher Education put out by Wiley periodicals. If you want to keep up with disability compliance in higher education, I highly recommend the publication. I was going through the back issues the other day, and I found a very interesting piece by Halley Sutton on a study that found people hide their disability at work. The study was conducted by the Center for Talent Innovation and published in the Harvard Business Review. In another issue, I found a discussion of a worldwide survey of people in doctorate programs. Here are some statistics mentioned in both of those articles:
- 30% of the workforce matches the ADA definition of a disability;
- Only 39% of those with a disability disclose that fact to an employer;
- Only 24% of those with a disability disclose their disability to their team;
- Only 21% of those with a disability disclose their disability to human resources;
- Only 4% of those with a disability disclose their disability to a client;
- Only 13% of employees surveyed with a disability said at least one of their disabilities was visible;
- 62% of respondents reported their disability was not visible;
- 26% reported that their disability could be either visible or invisible depending upon the circumstances;
- Employees with disabilities who disclosed to most people they interact with are twice as likely to feel content and happy at work as their peers who do not disclose their disabilities;
- Employees with disabilities who disclose their disability to those they work with regularly are less likely to feel nervous, anxious, or isolated at work than their peers with disabilities who do not disclose;
- Signals a person with a disability can use to help determine whether a workplace is a safe space to disclose their disability include: 1) look for signals of support. For example, is there transparency around workplace accommodation during orientation? (These words are taken directly from the article. I am not exactly sure what transparency around workplace accommodation during orientation means. Perhaps, it mean the signals you get during orientation with respect to the employer’s sensitivity to disability issues and to accommodating people with disabilities). Is disability listed as an aspect of diversity in the organization’s diversity statement?; 2) get to know your manager. Inclusive managers make sure everyone gets heard, offer actionable feedback, take advice, empower team members, and make it safe to propose ideas and share credit; 3) identify an ally. That is, if a manager does not seem inclusive look for other leaders in the company who are, or look for organizational advocacy and mentorship options; and 4) join or start an employee resource group;
- In a different study, the fifth annual survey of doctoral students across the globe by Nature Magazine, we find other statistics, including: 1) 36% of doctoral students around the globe report suffering from anxiety and depression caused by their doctorate studies and sought help for those conditions in the last year. A 300% increase from 2017; 2) 18% reported seeking help at their institution and did not feel supported in doing so; 3) nearly 10% reported that they tried to seek help for mental health concerns at their institution but such help was not readily available; 4) more than ¼ of students did report receiving adequate assistance at their institution for mental health concerns; 5) more students disagree then agree that the university or college offered adequate one to one mental health support; 6) and more than 40% of students did not feel their institution had adequate mental health resources specifically tailored to meet the needs of doctoral students;
- As a deaf individual who gets 50% of his comprehension from lip reading, masks are a big deal. It works the other way to for those with underlying health conditions. The key is the interactive process.
- With everything moving online, effective communication becomes even more complicated. Nevertheless, the effective communication rules still have to be complied with.
- Just because faculty and students at schools are working from home does not mean their ADA related obligations end. Same goes for related laws, such as IDEA and §504 of the Rehabilitation Act.
- I just read an article today in the Atlanta Journal-Constitution about how one of the ways the State of Georgia is going to deal with budget cuts is to go all in on telework. It saves a tremendous amount of money poured into the physical plant normally. The article talks about how the State of Georgia had an epiphany when it found out that so much work could be done remotely and did not need to be in person. This has absolutely huge implications as to whether attendance is an essential function of the job. An absolute huge issue going forward will be the debate over whether attendance is a personal preference or an essential function of the job. Before the pandemic, most people would say attendance was an essential function of the job. Now, I am not so sure. As a result of the way the world has responded to the Covid-19 pandemic, a strong argument exists that attendance is a personal preference for many jobs and not an essential function at all. You may want to review this blog entry and place it in the current context of where we are with how we are dealing with the Covid-19 pandemic to figure out when a job might require attendance as an essential function. Perhaps, that is something I need to do as a separate blog entry.
- The DOJ as well as Health and Human Services have made it quite clear that they are not going to tolerate healthcare rationing. That is, healthcare services should be based upon an individual’s current condition and not based upon subjective notions of the patient’s quality of life.
- What is a fundamental alteration is a case-by-case determination.
- Digital accessibility is not a new issue but becomes more important now with the pandemic.
- Some of these issues are quite complicated with respect to ADA compliance. So, utilizing ADA knowledgeable individuals, including ADA knowledgeable counsel/consultants when necessary, is critical.
- With respect to the statistics I mentioned, if the statistics show anything, the number of people feeling comfortable disclosing their disability to employers is extremely low. Such few people disclosing their disability means that the culture of various employers is not sufficiently accepting of people with disabilities in the way they should be. This is something that employers need to change. There is a tremendous amount of press at the moment about making places of employment open places for those who are minorities. In doing that, don’t forget about people with disabilities as well.
- The problem with not disclosing a disability is that it gives an employer the right to go about their business as if the disability doesn’t exist. An employer cannot make reasonable accommodations if they don’t know about it. That said, employees are worried about keeping their jobs and not making their jobs miserable if they ask for reasonable accommodations. Clearly, from the statistics, there is a lot of work ahead for employers to make their employees with disabilities comfortable in disclosing.
- On the legal side, corporations may want to insist on their outside counsel staffing their cases with attorneys with disabilities as a condition of keeping their outside counsel status. I know Sidley and Austin for example has several clients that insist on disability considerations as part of contracting with them. I also agree that employee resource groups can be very helpful. Also, affinity bar groups can be very helpful. With respect to disability affinity bar groups, they are few and far between. One that is out there is the Deaf And Hard Of Hearing Bar Association, but to my knowledge little else exists. I know from first-hand experience that broad based disability organizations can be very difficult to pull off. I am also aware of big firms that have set up employee resource groups for people with disabilities, including but not limited to Sidley and Austin and Reed Smith.
- It doesn’t surprise me that only 4% of people with disabilities disclose their disability to a client. I happen to use it as a marketing tool. Also, I know other attorneys that successfully use their disability in the context of showing clients how they could overcome a disability. Clients can be impressed by that.
- Disclosure is an intensely personal call and depends on a myriad of individual factors as well as on the setting. That said, disclosing a disability can have very beneficial psychological effects. It also gives a person with a disability the ability to exercise their rights under the ADA/§504. In my practice, I have seen real problems arise when a person does not disclose early.
- One of the things that the LGBT human movement did was encouraging self-disclosure whenever possible. What they found is that the more people worked with people who were out, the more comfortable people became. Disability disclosure is much more complicated because there are all kinds of stigmas, stereotyping, as well as misinformation about what it costs to accommodate a disability. Nevertheless, the more people get used to dealing with people who are open about their disabilities, the more people will get used to it. A big game changer is going to be how we have responded to the Covid-19 pandemic. So many of the accommodations that people with disabilities have been asking for in the past are now given as a matter of course. People with disabilities are likely to remember that.
- Finding allies and mentorship for people with disabilities is a big issue. If my experience is any indication, this piece is not easy to figure out at all.
- Are we prepared for the coming mental health crisis? I don’t think so. It will make for very busy times for anyone specializing in ADA compliance.