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This is a little inside baseball, but it might help some folks understand some decisions that otherwise seem inexplicable.
As the Delta variant has surged, we’ve been getting requests from various faculty and staff to work entirely remotely. But our fall class schedule is more than half in person, and students have been registering for those sections for months.
To make decisions on some sort of basis, we’ve been relying on the Americans With Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Those have the advantage of actually existing, and of already having processes and criteria in place. They’re nonarbitrary ways to say yes to some and no to others.
The catch is that neither of them was written with contagion in mind.
For example, one of the more common reasons given in a request to work remotely is fear of bringing home infection to an immune-compromised spouse or a child too young to be vaccinated. On a human level, that makes sense; if my kids were too young to be vaccinated, I’d be concerned about bringing something home to them. As I understand it, though, the ADA doesn’t apply in either case. The only person eligible for an accommodation is the one with the disability; if Sarah works at the college and her wife, Susan, is disabled, the college has no obligation to, or on behalf of, Susan. The same is true of kids (and being under 12 isn’t considered a disability anyway).
The FMLA at least takes account of people beyond the employee. But the key word in the title is “leave.” It allows for time-limited unpaid leave, rather than doing the job differently. And for most people, extended unpaid leave would be a real economic hardship.
We’ve taken measures to reduce exposure. Full-time faculty only have to teach two classes (out of a standard load of 15 credits) in person, and they only have to be on campus two days per week. Staff can work remotely up to 40 percent of the week as long as offices are covered. (That can work through staggering shifts. One person does MWF, another does MTR, the third does TWR …) And we’ve announced an indoor mask mandate to reduce vulnerability during the times that folks are around.
Still, I have to admit finding the ADA and FMLA to be awkward fits in this context. Neither was written on the assumption of easy contagion. If I have a co-worker who uses a wheelchair, I’m not endangered by that, and neither is anyone else in my home. If I have a co-worker with a highly contagious respiratory virus, I’m endangered by that, and so is everybody else in my home. Policies and remedies that make perfect sense in the first case may not fit the second.
As a college, we really can’t improvise an entirely new policy on the fly. It’s a collective bargaining environment, for one thing, so treating employees differently from each other in ways not already delineated in either law or contract would be tricky at best. If we threw open the gates, there’s no way of knowing how many people would go remote. And Delta is a moving target; as recently as a month ago, nearly everybody assumed that the fall would be normal. A month from now, who knows? When the facts change quickly, it can be hard for policies to keep up.
I mention all of this for two reasons. One is to shed some light on decisions that may seem bizarre from the outside. The other is to nudge lawmakers to at least study how to amend laws like the ADA in a context of rapid contagion. We’re doing what we can, but at some level it’s trying to shove a square peg into a round hole. While I hope that COVID soon vanishes down the memory hole, I hope we don’t forget its lessons before the next bug starts flying around.
