Over the weekend the Americans with Disabilities Act, a law that has shaped our schools, workplaces, public architecture, and attitudes towards our fellow citizens living with disabilities, turned 30. 

In the run-up to the anniversary, the Lit Daily caught up with Chai Feldblum, a director of workplace culture consulting at Morgan, Lewis & Bockius, who was the lead lawyer in the room of strategists, lobbyists, and legislators drafting the ADA 30-plus years ago. As the conduit between the litigators who had been wielding the disabilities rights law previously on the books and the political people shaping the new one, she uses the term "legislative lawyer" to describe her work. Feldblum, who went on to draft the 2008 amendments to the ADA and serve as a commissioner of the Equal Employment Opportunity Commission from 2010 to 2019, describes herself "someone who loves law, but was sitting in the legislative work, so could combine politics and law together to come up with something that would pass, which is what you want." 

Feldblum discussed what litigators should know about the landmark law and its application to the COVID-19 workplace environment. The following has been edited for length and clarity.

Lit Daily: So what was your hope for the ADA back when it was being drafted 30-plus years ago now? And has it fulfilled those hopes?

Chai Feldblum: Well, my hope was two-fold. One, I was a lawyer for the ACLU AIDS Project at the time. So, there was this very immediate need to give protection to people with AIDS and HIV who were experiencing horrific discrimination. So, one hope was to stop discrimination in employment, public accommodation, et cetera. 

But the other hope was to change society's view about disability generally. There was a desire to have a bill that would just protect people with AIDS and HIV, and I and many others thought that wasn't the right way to go ethically or politically. 

So the other hope was to get protection for people with any form of disability and not just protection from discrimination, but really starting to change hearts and minds about the capacity of people with disabilities and the right of people with disabilities to participate fully in our society.  

Lit Daily: What do your litigation colleagues at Morgan Lewis and litigators more broadly need to know about the ADA?

Feldblum: Well, the best thing is obviously for people to understand the law and know enough, so they don't have to be in court. My litigation colleagues at Morgan Lewis, most of the time what they're doing is counseling people how not to get into litigation. But obviously sometimes there will be litigation, and I think the most important thing to know is that the ADA was the product of many compromises and it is crafted in a way that is designed to give defenses to employers and businesses when those defenses are appropriate. Litigators should be aware of both the requirements and the defenses in the law. 

Lit Daily: Pitching this conversation forward in terms of COVID-19, could there be a wave of potential ADA litigation for employees with underlying health conditions that are asked to return to work in these conditions? 

Feldblum: Yes. I think employers need to be well aware of the requirements of the law because one could certainly expect that there will be litigation by those who feel they have experienced discrimination.

So, for example, some employers want to open up and require that everyone come back to work. But people who have medical conditions that put them at higher risk of having significant illnesses if they get COVID-19 have disabilities that require accommodation. And that accommodation would be to allow them to stay at home and work from home even if the employer wants everyone back at the workplace. So long as they can do their work at home, that's the accommodation that they have a legal right to have. 

If they can't do their work from home, then they have a legal right to have their job protected until they are able to come back and work in the location. So, in some situations the employer has to keep them on the payroll and allow them to keep working if they can do the job. In other situations, the employer doesn't have to keep paying them but cannot fire them. For those employers who don't do that, I think they can expect litigation. 

Lit Daily: How does the law outline where the line is between someone who is safe to come back to work and someone who is not? For instance, what is a reasonable accommodation for people who are just scared of being exposed as opposed to those who have possible underlying health problems that could make infection with COVID-19 more dangerous?

Feldblum: So here thankfully the CDC has drawn that line for us and has drawn it for employers. So someone who is simply afraid to come back to work, they have no right under the ADA of having the accommodation of being able to work from home or having job-protected leave. They have the right under the Occupational Safety and Health Act to go to a safe workplace and that's a separate obligation for the employer, but they have no right under the ADA if they're simply scared of going back to work.

That's as opposed to the line the CDC has drawn telling us: "These are the medical conditions." And so if you have a different medical condition that's not on that list from the CDC, even though you have a disability, you don't then suddenly have the right to work from home.

Lit Daily: Let's talk a bit about the confidentiality provisions within the ADA. Do you see possible litigation arising from violations of those provisions?  

Feldblum: I think there could be litigation, and it's why employers need to be so careful. If someone is infected with COVID-19, that person can be removed from the workplace and should be removed from the workplace based on current public health guidelines. However, the employer needs to be careful about providing information about that particular employee. When finding out that someone has been infected and has been in the workplace, an employer should find out from that person who that person has had contact with so that the employer can then reach out to those other employees and say: "We believe that you may have been exposed to someone who is infected. We're now asking you to self-quarantine for 14 days." 

Many people who get that information will say "Who is it?" and they want to know.

Lit Daily: It's the natural inclination. It's what anybody would ask: "Who was it?"

Feldblum: It is the natural instinct. And thankfully the EEOC made clear in its guidance that you should not be saying who the person is. Often people will figure it out themselves. But you do not want to expose yourself to litigation.

Lit Daily: That does strike me as an interesting conundrum to be in if you're in the exposed employee's shoes. You're trying to get as much information as you can to figure out how much exposure you had. When do the rights of the exposed employee come into play in all of this?

Feldblum: Part of why it's a natural instinct is because a person thinks "If I know who it is, I'll know how close I got that person." Right? 

However, from the employer's perspective, if they know the person has been exposed, they do not want that person in their workplace for 14 days. If you've been exposed, whether you thought you've been exposed or not is not going to make a difference to the employer, because you're out of the workplace for 14 days regardless.

It is a conundrum, but under the law, there's no right that the person who has potentially been exposed has. Whatever that person might decide to do—maybe he or she will not self-quarantine inside his or her own house—from the employer's perspective, that person is not going to be at the workplace. 

Lit Daily: Let's talk a bit about the ADA's restrictions on medical testing. First off, what are they? And how might they apply now?

Feldblum: So as a way of protecting people with often-hidden medical conditions, the ADA prohibits employers from asking employees whether they have medical conditions or requiring the person to take a medical exam, unless asking those questions and having an exam be taking is necessary, job-related, consistent with business. The EEOC has determined, correctly I think, that you have to ask people about their symptoms and have them take a COVID-19 test so that you're not in the situation we just described. So, that is permitted. 

Again there could be some litigation from folks who thought they were being discriminated against by being required to take a test. But I think that the law is pretty clear that you can require that. 

There are other tests that employers might want to require like the antibody test, because they might think if the person has antibodies they might be immune, and they'll have those people come back to work. Under the ADA as the EEOC is interpreting it, they may not require an antibody test. So again, it's important to know where the line is and isn't in terms of the types of tests that employers can require.

Lit Daily: As the lawyer in the room at the drafting of the ADA, do you think Congress ever assumed that the law would play the role it is playing now in the COVID-19 pandemic?

Feldblum: I think that while Congress could never have imagined specifically COVID-19, it's interesting that the law was developed in the context of the AIDS and HIV epidemic. That portion of the ADA that is now being used by the EEOC to make it very clear that, yes, you as an employer can require employees to take the COVID-19 test, came about because Congress was thinking about AIDS and HIV. 

I think this shows that the law has relevance both at a macro level protecting people with all disabilities and at a micro level in terms of particular disabilities that can cause issues and concerns.