Friday, September 18, 2020

Coronavirus Update 9-18-2020: advocacy for others as protected conduct under the ADA

In Kirilenko-Ison v. Board of Education of Danville Independent Schools, the 6th Circuit Court of Appeals held that an employee who engages in advocacy with their employee regarding the rights of a disabled third-party engages in activity that the ADA protects from retaliation. 

That case involved two school nurses fired alleged for advocating for the rights of their disabled students. It's not difficult, however, to see how this holding translates to a situation involving, for example, COVID accommodations for employees

Imagine, for example, a supervisor or manager advocating for an employee at high risk for COVID-19 complications to work from home as a reasonable accommodation exception to the company's return-to-work program. Or HR advocating for an exception to a mask policy for an employee with pulmonary disease. Or someone advocating for a co-worker to have a flexible work arrangement because of childcare-related concerns. 

This advocacy for others absolutely qualifies as protected activity under the ADA, and to react adversely because of it will result in a retaliation claim that will be difficult to defend. Embrace employees who have the empathy to advocate for their disabled co-workers; don't retaliate.