Civil Rights | Dolan Law Firm

What Is A Reasonable Work Accommodation?

Written By Christopher B. Dolan and Emile Davis

This week’s question comes from Cindy W. from Oakland: I am immune compromised and have a number of related health conditions that make me much more susceptible to serious and life-threatening symptoms if I contract COVID-19. Even the less severe strains could send me to the hospital and threaten me. I have a good job and want to keep it, but I am concerned that I will be exposed. Is there anything I can do to make sure I can continue working, but that I remain safe? – Cindy W.

Thank you for your question, Cindy.

Fortunately, there are protections that may be available to you and the many others who are immunocompromised, or otherwise highly susceptible to severe reactions to COVID-19.

For individuals with a disability, an employer has an obligation to provide reasonable accommodations that would allow that person to perform the essential functions of the position. These protections come Federally pursuant to the ADA (Americans with Disabilities Act) and in California from the FEHA (Fair Employment and Housing Act). There are some differences in the laws, but the ADA acts as a floor, or minimum protections, and where the FEHA has more protection available, that will control.

For an employer to be required to make accommodations, a worker must notify the employer of the fact that they have a disability and that they require accommodations. To be what the law refers to as a “qualified person with a disability,” one must have the skills and experience required for the position and have a physical or mental impairment that limits a “major life function.” Being seriously immunocompromised, as you are, is likely to meet that standard.

Once an employer is aware of the disability and a need for accommodations, both the worker and the employer must engage in a good faith interactive process to find suitable accommodations. It is important to understand that an employer is not obligated to provide the worker’s preferred accommodation. It must, however, provide an accommodation which will allow the worker to perform the essential functions of the position. Keep in mind, no employer is required to offer an accommodation which creates an “undue hardship.” An undue hardship is an action requiring “significant difficulty or expense.” Each potential accommodation is very fact specific, but to determine if it is an undue hardship, courts have looked to many factors including the nature and cost of the accommodation, the financial resources and structure of an employer, as well as the type of operations of the employer and its facilities.

In the context of those who are ill, or afraid to come to work because exposure to the virus may create severe health issues, there are a number of potential accommodations worth exploring, depending on the type of work a person performs. Historically, it did not used to be reasonable for a worker to request an accommodation to work from home. Previously, it was often considered to be an “undue hardship.” However, over the last two years, for many job functions, it has become the norm for many positions. Obviously, for many positions, such as labor, customer service, and similar positions, this is not feasible. However, for many office workers, it may now be a “reasonable accommodation.”

For others, another option in an office. An office may be requested, for protection, as an accommodation to work from rather than an open-air cubicle where foot traffic is high.

For more hands-on positions, it may be possible to work later in the day, or at night, where there are not so many people in the workplace presenting a danger to COVID transmission.

If the job can be done remotely for the most part, but the position requires some in-office time, such as filing paperwork, it may be a reasonable accommodation to work part-time from home and part time in the office, thus reducing the exposure.

Importantly, there is no set list of accommodations. The law requires the interactive process for the worker and employer to come to a set of accommodations which allow the worker to perform the position without causing an undue hardship on the employer. Whether an accommodation is reasonable can truly only be understood on a case-by-case basis.

No employer can legally retaliate against a worker for requesting accommodations. The request counts as a “protected activity” such that, if an employer were to retaliate against the person requesting, they could be liable and made to pay damages in a civil lawsuit.

Cindy, I hope this article helps you get the accommodations you deserve.

The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly. The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly-available federal, state and local health organization guidance and government mandates.

Written By: Christopher Dolan and Nancy Villatoro

This week’s question comes from Fran in San Jose: I enjoy walking and like to do so as much as possible. If I can avoid having to drive, I will do so and complete some errands on foot. Even when I drive, I don’t mind parking at the end of a parking lot where there is plenty of room rather than circling for a spot that will only save me a few seconds. In my walks I have noticed how restrictive sidewalks can be and how we are herded along crosswalks. Don’t get me wrong, I realize it’s for my safety to use crosswalks, but I can’t help to think that crosswalks are not engineered to protect pedestrians. While waiting for a light to turn green, I have seen some dangerous street corners where only an imaginary line stands between me and a car going 40 mph. One wrong turn or distraction is all it would take for me to get hit by a car. Are crosswalks there to protect us or simply make more room for cars?

Thank you for your question, Fran. You have a good point of view and excellent question. Prior to the 1920s, city streets looked dramatically different than they do today. There were few crosswalks on the street, and they were generally ignored by pedestrians. Streets were considered to be a public space: a place for pedestrians, children at play, similar to a stroll in the park or a walk in the mall. People would move in any direction without really thinking about it. Author Peter D. Norton in the book Fighting Traffic: The Dawn of the Motor Age in the American City (Inside Technology), describes pedestrians as walking “in the streets anywhere they wanted, whenever they wanted, usually without looking.”

As cars began to spread widely during the 1920s, there was a spike in the number of pedestrian deaths. Over the first few decades of the century the number of people killed by cars skyrocketed.

Before formal traffic laws were put in place, judges typically ruled that in any collision, the vehicle was to blame. A movement began to regulate the speed of vehicles to reduce the number of pedestrian deaths. In response, automakers, dealers and car enthusiast groups worked to legally redefine the street.

By the 1930s, most streets were primarily motor thoroughfares where children did not belong and where pedestrians who failed to use the crosswalks were condemned as “jaywalkers.” Cities and downtown businesses began to regulate traffic in the name of “efficiency.” The articles printed in that era shifted blame for accidents to pedestrians, signaling that following the new traffic laws were important.

Today, in California, the driver of a vehicle must yield the right-of-way to a pedestrian crossing a roadway within a marked crosswalk or within an unmarked crosswalk at an intersection. (California Vehicle Code § 21950(a).) If the driver approaches a pedestrian within a marked or unmarked crosswalk, he or she must exercise all due care and must reduce speed or take any other action as necessary to safeguard the safety of the pedestrian. (California Vehicle Code § 21950(c).) However, a pedestrian is nevertheless responsible for exercising due care for his or her safety, thus cannot suddenly “leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute and immediate hazard.” Additionally, no “pedestrian may unnecessarily stop or delay traffic while in a marked or unmarked crosswalks.” (California Vehicle Code § 21950(b).) The duties of the pedestrian do not relieve the driver from the duty to exercise due care for the safety of a pedestrian within a marked crosswalk or within an unmarked crosswalk at an intersection. (California Vehicle Code § 21950(d).)

Although some intersections and crosswalks can be designed better, crosswalks serve a purpose to keep pedestrians safe while allowing drivers the room they need to travel across city streets. As more people begin to rely less on their cars, more people like yourself will see how we need better designed crosswalks. Continue making your voice heard. You will find you are not alone.

Written By Christopher Dolan and Vanessa Deniston

This week’s question comes from Emily from the Bay Area:Recently, I took a rideshare home from a holiday party I attended in the city. During the party, I had several drinks and by the time I was ready to leave, I was not in a state to drive myself. I called a rideshare vehicle to take me home. During the ride, the driver asked me several personal questions that made me feel uncomfortable, specifically what kind of guys I was attracted to and if I had roommates or lived alone. When I first approached the car, the driver even encouraged me to sit in the front seat next to him, which I found odd. Luckily, I was not so drunk that I could not perceived these red flags. I ended up calling my friend who kept me company on the phone all the way home. Hypothetically, had the driver pulled over and tried to attack me, what legal recourse would I have and against whom?

We are so glad you arrived home safely, Emily. We hear this type of story frequently. It’s much more common than you would think. Rideshare services, like Uber and Lyft, can offer drunk partygoers a safer alternative to getting behind the wheel intoxicated, but all riders should still exercise caution, especially women riding alone. While most rideshare companies subject their drivers to criminal background checks, the system isn’t fail-proof as evidenced by the over 4,000 reported incidences of sexual assault to Lyft between 2017-2019 and nearly 6,000 reported to Uber within a similar timeframe.

The great majority of rideshare assault cases in California involve intoxicated female passengers riding alone with a male driver. Indeed, in such a circumstance the likelihood of an assault greatly increases. An intoxicated female passenger will not be as alert as she otherwise might be if she is sober, missing red flags. She is more likely to engage in seemingly friendly banter with the driver and divulge personal details she may not otherwise volunteer. She is also unlikely to have awareness of where she is and may not notice if the driver has deviated from the designated route to her ultimate destination. If the driver makes advances on her, she is unable to give consent and may have an impaired memory regarding what occurred and when. She is also likely to struggle with providing an accurate description of her perpetrator. It is important that all women and solo passengers traveling in a rideshare vehicle be aware of common troubling signs.

To address your question directly, Emily, if you are assaulted by a rideshare driver, you are likely to have claims both against the driver and the rideshare company the driver contracts with. In some isolated incidences, you may also have a claim against third parties, if that third party requested the ride on your behalf and you are an intoxicated minor. If you are assaulted during a ridesharing ride, or you believe you may have been assaulted, it should be reported immediately to both the police and the rideshare company. Take immediate action to preserve any receipts for your ride and take screenshots of any information within the app that may identify the date and time of the ride, the identity of the driver, the driver’s license plate number, and the route taken by the driver to your final destination. This information will significantly narrow down the pool of perpetrators and allow the police and the rideshare company to identify him more easily. Preserve all clothing you were wearing on the date of the assault and visit the ER to have a rape kit evaluation performed.

To the extent possible, avoiding such circumstances entirely is the key objective. There are several steps you can take to thwart or seriously deter opportunistic predators in such circumstances and you utilized some of them. Above all else, trust your instincts. If the behavior of the driver feels suspect or off to you, do not get in the car. Simply call another ride. If the driver exhibits concerning behaviors during the ride, cease further engagement with the driver and involve a third party. Call a friend to keep you company on the phone during the ride home or text someone you have regular contact with, reporting your whereabouts, when you should be home and the behaviors you perceive to be troubling. If the driver offers you food or drink after exhibiting troubling behaviors, politely decline. Many rideshare apps have integrated a section within their apps where you can report safety concerns. Understand, this is not, nor should it be, a substitute for calling 911. If the driver inadvertently cancels the ride and pulls over in an unfamiliar area, call the police immediately.

If you believe you may have been the victim of an assault, report it to the police immediately and contact an attorney to advise you of your rights. Your action may well prevent further assaults from occurring if the perpetrator is identified and suspended from the rideshare platform.

Written By Christopher B. Dolan

This week’s question comes from Frank T. in the Mission District: I got a jury summons in the mail. Why do I keep getting them? I don’t want to sit on a jury and take time away from work. My husband and I had a real hard time during COVID and taking time off work right now would be difficult.

Frank, I know this is a sentiment shared by many right now. The right to trial by a jury of one’s peers is enshrined in the Bill of Rights that was formed at the time of the birth of our Nation. When The Colonies were under British rule, citizens had no right to have members of their community decide their fate. Justice had become politicized, and it was administered pursuant to British law, and as a manner of repression, as the colonists were considered British subjects. British law was often unjust and unfair to the Colonists and failed to recognize the realities of living in the New World. This was one of the many injustices that spurned the birth of our Democracy. Trial by jury was, and largely remains, an American institution with most countries not offering jury trials to their citizens.

The right to trial by jury was established under and through the Seventh Amendment to the Bill of Rights. As such it was one of the original rights for which a war was fought, blood was spent, and lives were sacrificed. The right to trial by jury is also guaranteed by Section 16, of Article One, of the California Constitution.

What was once considered a fundamental right and honor is now perceived by many as an annoying and disruptive inconvenience. Not to minimize the impact that you feel jury service has upon your personal circumstances, too many of us now take for granted our democratic freedoms, rights and responsibilities. Jury service is an apolitical right and in today’s environment where the courts have become more politicized, the fact that a jury pool is drawn from a broad cross-section of our community is perhaps one of the most apolitical aspects of our Democracy.

As your name, Frank, suggests that your pronoun is male, and you reference your spouse with the pronoun he, I deduce that you are in a same sex marriage. (If my assumption is incorrect, please forgive me.) I want to put this into some perspective: imagine if you or your husband were accused of a crime, were the victim of a hate crime, or been deprived a civil right based upon your sexual orientation. If you lived in another state, not as progressive as California, the judge might be an elected or appointed official who is homophobic, or against gay marriage, and she/he would be the sole decisionmaker on your case. That prejudice could very well affect the outcome of your case and be demoralizing. Likewise, were no members of the LGBTQ community to heed the call to jury service, you would not receive a jury of your peers.

No one knows the case you have been summoned for as of now. Jurors are randomly selected from DMV records, voting rolls and other public sources of information and, until the day you show up at the courthouse, there is no way to know what type of trial, or what type of issue, is involved. In San Francisco, if you are summoned to 400 McAllister Street chances are that it is a civil trial involving disputes between two parties, two businesses, or an individual seeking justice against much more powerful interests such as corporations and/or the government. If you are summoned to 850 Bryant Street, it is most likely a criminal case.

Since COVID-19 began, I have tried two cases to verdict, one in September against a police department and officer where there was a claim of unlawful and excessive use of force resulting in a shooting and one against an insurance company for injuries suffered in a collision. I selected juries, presented the facts, and received verdicts in favor of my clients who otherwise would never have received justice. Had jurors not shown up, my clients would never have had their chance to receive fair and impartial justice. We would never have been able to stand up to the police and, quite possibly, given the judge and venue in another state, we would not even have had a chance, much less won.

The right to trial by jury is already threatened by big monied interests that don’t want trial lawyers like me to balance the power dynamics. Organizations which I am proud to be a member of, such as the American Association of Justice, and the Consumer Attorneys of California, fight diligently and spend millions of dollars annually, contributed by members such as myself who believe in this right, to help elect pro-justice, pro-civil rights and pro-7th Amendment legislators to help preserve the right to trial by jury.

Many jurors, originally reluctant, after serving their jury service are glad they did it. They feel proud of being a group of twelve (or six in Federal Court) who participated. I hope you take the call to service and have a meaningful experience. Lastly, just because you are called for jury duty doesn’t mean you will serve. Many times, jurors are not needed as a case gets resolved or settled. Even if you are called into court, most jurors do not get selected, as often more jurors are called then end up being needed.

I hope this helps you see things in a different light. Without Jurors, the light of democracy dims remarkably.

Written By Christopher B. Dolan and Kim E. Levy

This week’s question comes from Linda R. from Oakland: I’ve been hearing a lot about new laws that have been passed in the last several months in California. Can you tell me about laws that could benefit families with children?

Thank you for asking, Linda. There has been a wave of new legislation passed in California this year geared towards helping families and rounding out public education. Here are some of the highlights promoting diversity, equity, inclusion, and family values in California.

California Comeback Plan

Governor Newsom’s California Comeback Plan makes enormous investments into early childhood education by providing universal transitional kindergarten education by 2025 with implementation in some school districts as early as Fall 2022. Specifically, the program provides free, high-quality, pre-kindergarten for all four-year-old children in California. The plan also increases the amount of supervision provided to children by reducing class sizes and cutting adult-to-child ratios in half with at least an average of 1 adult for every 12 children, down from 1 for every 24 children. The plan also provides $1,500 to 3.7 million low-income students as seed money for college savings accounts.

Expanded Family Leave

On September 27, 2021, AB1033, a bill expanding the California Family Rights Act was signed into law. Under this law, employers must provide eligible employees up to 12 weeks of job-protected leave from work, on an annual basis, to care for a parent-in-law with a serious medical condition. This law will provide new protections and greater flexibility for employees that must care for their aging in-laws, and is clearly beneficial to families struggling finding adequate care for a family member and/or struggling financially with affording outside care for a family member.

Parent Healthcare Act

Since the passage of the Affordable Care Act under President Obama allowing children to remain on their parents’ insurance plans up to age 26, it is becoming more common for states to expand that coverage up to age 30 (Florida, Illinois, Pennsylvania, New Jersey). However, California has become the first state to expand coverage to allow adult children to include their dependent parents on their health insurance plans. To be eligible for this coverage, adults must rely on their child for at least 50% of their total support. Unfortunately, the law only applies to people who have purchased their insurance on the individual market. Those who have insurance through work are not eligible to add their parents to their plans. This law is meant to help increase healthcare access to adults living in the country illegally who are ineligible for Medicaid or Covered California plans. This law will take effect in 2023.

Teaching Mental Health

SBB 224 is an important bill requiring middle schools and high schools to incorporate mental health instruction into existing health education curriculum. Instructional content will include habits that promote mental wellness, hope to spot signs and symptoms of common mental health conditions, and how to seek help for mental health related conditions. The purpose of this bill is to help reduce stigma and start conversations around mental health in schools.

Ethnic Studies as High School Graduation Requirement

AB101, which goes into effect by the 2024-25 school year, will require that all California public high school students receive education in ethnic studies in order to graduate. Under this law, school districts may either develop their own lesson plans or use a model curriculum created by the state board of education. The importance and benefit of this law is self-evident and supported by significant research which has found that students perform better in school if they see themselves in the lesson being taught. In signing this bill into law, Governor Newsom said, “Ethnic studies courses enable students to learn their own stories, and those of their classmates, and a number of studies have shown that these courses boost student achievement over the long run – especially among students of color. I appreciate that the legislation provides a number of guardrails to ensure that courses will be free from bias or bigotry and appropriate for all students.”

Gender Neutral Toys

Last but not least, AB1084 mandates large department stores selling children’s products to provide a gender-neutral toy and childcare item section within the store. Stores that do not comply with the law will face fines of up to $500. While this bill will not radically alter the shopping experience, it represents a small step in a push toward greater change and inclusion.

Written by Mari Bandoma Callado and DE&I Committee

The Dolan Law Firm recognizes World Braille Day to raise awareness for blind and partially sighted people.

History

In December 2018, the United Nations General Assembly established World Braille Day to be observed annually on January 4 to raise the importance of Braille, which serves as a communication medium for blind and partially sighted people. The date marks the birth anniversary of Louis Braille, who at the age of 15, invented the tactile representation of alphabetic and numerical symbols using six dots to represent each letter and number, and even musical, mathematical, and scientific symbols.

Being Visually Impaired During the COVID-19 Pandemic

People with disabilities are less likely to access health care, education, participate in the community, and be employed even under normal circumstances. For the visually impaired, the COVID-19 Pandemic showed just how critical it is to produce essential information in accessible formats like Braille and other digital accessibility or audible formats. Otherwise, people with disabilities could face a higher risk of contamination due to the lack of access to guidelines to protect and reduce the spreading of the pandemic.

Workplace Accommodations

While the use of Braille appears to be declining in a literacy context, it remains a key tool in everyday life. Advocates note that one of the key advantages in understanding Braille is the connection between literacy and employability. In 2017, the American Foundation for the Blind found that blind or visually impaired people in the United States have an employment rate of 44.2 percent, which is 35 percentage points lower than the employment rate at the time for those without disabilities. Additionally, there’s an $11,000 wage gap between those who read Braille and those who don’t according to a 2015 article published in the Journal of Blindness, Innovation and Research. Accordingly, individuals who experience blindness or visual impairment are more likely to experience higher rates of poverty. Thus, it is critical for employers to increase accessibility and opportunities by providing accommodations for job applicants and employees.

Employers are required to provide job applicants and employees with disabilities “reasonable accommodations” that allow them equal opportunities under the Americans with Disabilities Act (ADA), and/or the Fair Employment and Housing Act (FEHA). Accommodations vary depending on the needs of the applicant or employee but here is a list of examples of adjustments or modifications that are often requested by individuals who are blind or visually impaired:

Assistive technology like scanners, magnifiers, digital records, screen reading software, refreshable braille displays, and braille embossers;
An accessible website that allows workers to access employee portals, message boards, employment handbooks etc.;
Modification of an employment test or training;
Providing written materials in an accessible format e.g. braille, large print, or audio;
Guide dogs; and
Flexible schedule or work from home option.

Requests for accommodations are “protected”, meaning that if they are made in good faith, a worker may not lawfully be retaliated against for making the request. The request should also start what is known as the “good faith interactive process.” That is a process where the employer and employee work together to find a solution that works for both of them. The employer is not required to offer the requested accommodation but must work with the employee to determine whether there is a potential accommodation that will allow the employee to perform the essential functions of their position without creating an undue hardship on the employer.

If you believe that you have been discriminated against because of your disability, or if you need help requesting reasonable accommodations, contact the Dolan Law Firm’s employment attorneys.

Additional Information and Resources for people with visual impairment:

National Library Service (NLS) is a free braille and talking book library service for people with temporary or permanent low vision, blindness, or a physical, perceptual, or reading disability that prevents them from using regular print materials. Note that digital braille and talking book titles can be downloaded from the NLS BARD (Braille and Audio Reading Download) service.
The Office of Services to the Blind (OSB) provides information and referral on services, programs, entitlements, and products of benefit to individuals who are blind or have low vision and their families or service providers. OSB staff assists such individuals in understanding the availability of services, their eligibility for services, and the purpose and scope of the various service programs.

Written By Christopher B. Dolan and Emile Davis

This week’s question comes from Matthew H. from San Francisco: My workplace is hosting a Holiday party and they are telling us to keep it work related and professional, if we decide to attend. I don’t plan on getting crazy, but can they tell us how to act outside of our work schedule? It seems a bit much.

Dear Matthew,

Each year, the Dolan Law Firm receives multiple phone calls from people who have been the victim of harassment or discrimination at company sponsored holiday parties. The Holiday season is, once again, upon us, if everyone thinks ahead, many of the potential pitfalls can be averted and everyone can enjoy the party.

End of year Holiday parties have a unique potential for sexual harassment. Several factors combine to make sexual harassment a particular danger at these types of functions. Holiday parties often take place at a location away from the worksite. This factor alone can lead to the relaxing of the behaviors people tend to understand as “workplace appropriate.” The fact that people are interacting in much more social environment than usual can also add to the tendency for people to stray from workplace norms. This is often exacerbated by the often-accepted use of alcohol at these events. This combination can be recipe for bad things to happen.

The good news is that employers can take steps to minimize the dangers of harassment. One thing an employer can do is include a copy of the workplace discrimination and harassment policies within any email or invitation, or a simple reminder that the policies in place at the worksite are applicable to the holiday party as well. Reminders that, although co-workers will be interacting socially, they must treat each other with the respect they have for one another in the workplace, can set clear guidelines for what is appropriate behavior. Archaic traditions that attempt to legitimize and trivialize harassment, such as kissing under the mistletoe, need to be left in the past.

If the employer is hosting the bar, a limitation on the number of drinks can keep people from overindulging. No good has ever come from a person over-drinking at a holiday party.

Making sure, prior to the event, that everyone has a safe way to get home is also a big help. It can save an employee from getting a DUI. And, importantly, it can ensure that an intoxicated worker is not coerced to accept a ride home from somebody who makes them uncomfortable or who has ill intent.

If the employer participates in a gift exchange or “Secret Santa” game at the holiday party, a clear understanding of what types of gifts are acceptable is imperative. Sexualized gifts may seem funny to some, but can be offensive and traumatic to others given their particular history. Joke gifts can be fun and funny, but can also cross the line into scary intentional harassment. For example, Dolan Law Firm proudly represented an African-American woman who was singled out to receive a particular gift at a holiday party- she was purposely presented a purse embroidered like a confederate flag which contained pictures of the owner of the company dressed as Donald Trump in front of a sign indicating that the south would rise again.

Another area of concern at holiday parties is religious discrimination and harassment. Not everyone celebrates Christmas. People of other faiths should not feel pressure to be involved in a religious based holiday, or to explain why they are not. We can all celebrate the end of the year, and most religions have some sort of a mid-winter holiday or day of remembrance.

When employers make the expectations clear and plans for the well-being of all the employees, it allows everyone to enjoy the Holiday party.

Each employee can also help. Everyone should have a pre-planned manner to travel home safely. Don’t encourage overindulgence in alcohol. Think about how the gift you are giving may be received. Act with dignity and respect toward your co-workers. Enjoy the party.

Hopefully, this year Dolan Law Firm does not receive one of those calls.

Written By Christopher B. Dolan and Katelyn P. Dembowski

Tess from Oakland asks: I saw on the news that California will now require public schools to carry menstrual products. Can you explain how they will implement this and when this will be available for students?

Dear Tess: Thank you for your question. This is incredible news in the advancement of safety and security for all those who menstruate.

On October 8, 2021, Governor Newsom signed AB-367, requiring California public schools and colleges to stock their restrooms with free menstrual products. The Menstrual Equity for All Act of 2021 (AB-367) builds off of a 2017 California law which required low-income schools in disadvantaged areas to provide students with free menstrual products. Specifically, the 2017 law required public schools from grade 6 through grade 12, that met a 40% pupil poverty threshold, to stock 50% of their restrooms with feminine hygiene products. The 2017 bill also prohibited the public schools from charging students for the menstrual products.

The Menstrual Equity for All Act of 2021 requires public schools with grades 6 through 12 to stock all school restrooms with an adequate and free supply of menstrual products in the women’s and all-gender restrooms, and at least in one men’s restroom. Schools are required to implement this for the upcoming 2022-2023 academic school year.

Additionally, the Menstrual Equity for All Act encompasses not only public middle and high schools, but all California State Universities and the community college districts within the state to implement this policy as well. The law also encourages, but does not require, the Regents of the University of California and private universities, colleges, and institutions of higher learning to also stock adequate supplies for all menstruating pupils.

Assemblywoman, Cristina Garcia, led the charge by introducing this life-changing legislation. “Our biology doesn’t always send an advanced warning when we’re about to start menstruating, which often means we need to stop whatever we’re doing and deal with a period,” she stated regarding the new legislation.” Just as toilet paper and paper towels are provided in virtually every public bathroom, so should menstrual products.”

Garcia, who crowned herself the “Period Princess,” gained inspiration for The Menstrual Equity for All Act from a 2020 bill passed in Scotland. Scotland became the first country to make period products available to anyone who needs them in all public places. The Scottish Parliament unanimously passed the bill, which is estimated to cost the country approximately $32 million annually. Worldwide, countries like Britain, Australia, Canada, and India have eliminated taxes on menstrual products and many are working towards having free products available in public places as well.

Unfortunately, access to free and sanitary menstrual products in public spaces is not the norm. According to Women’s Voices for the Earth, more than half the states still tax menstrual products as a “luxury” item. When Women’s Voices for the Earth began tracking menstrual health policies in January 2021, there were only about 20 bills across the United States. As of November 2021, there are now more than 140 bills in 37 states, including 8 bills introduced on the federal level, to advance menstrual equity by requiring free access to period products, eliminating tax, and requiring ingredient disclosures.

The Menstrual Equity for All Act is the latest step in California toward “menstrual equity” in the nation’s most populous state. California has a history of implementing laws that are later echoed in other states, and we can only hope that states will follow suit and continue to push for menstrual equity for all persons who menstruate. This year, California also eliminated a tax on menstrual products, which used to cost Californian’s more than $20 million annually.

It is extremely difficult to have access to safe and sanitary menstrual products for low-income individuals around the world. Over 1.8 billion people around the world menstruate. For millions, stigma, taboo, and a lack of access to sanitary products stop them from participating in work, school, and daily life during their periods. A study conducted earlier this year found that 1 in 4 teens who menstruate said they struggle to afford period products.

Period poverty causes many people to miss out on life and daily activities many of us take for granted. We hope this new law will help many people who menstruate feel more secure when their period comes along, and safer knowing they will have access to sanitary menstruating products.

Written by Christopher B. Dolan and Mari Bandoma Callado

Sandra F. from Castro Valley writes: I work at a grocery store and contracted COVID-19 in July. I have since tested negative and have been told by my medical provider that I am outside the contagious window for spreading the virus. Unfortunately, some of my symptoms have not gone away, and have been told that I have “Long COVID”. I still have fatigue, shortness of breath, lightheadedness or dizziness when I stand, headaches, loss of taste and smell, and brain fog. My job requires me to stand and walk a lot but I am having a hard time doing that for long periods of time before feeling overly tired, having shortness of breath, or getting dizzy. I am worried that I will fall or hurt myself. I would like to ask my employer for accommodation but I am not sure how. Will I get in trouble for asking for a chair or a different position while I am recovering?

Thank you Sandra for reaching out. We are sorry to hear that you are still experiencing COVID-19 symptoms. As you mentioned, for some people, the symptoms from contracting COVID-19 do not go away and some studies indicate that 10% of COVID-19 patients may become long haulers.

Is Long COVID Classified as a Disability Under the ADA or FEHA?

The Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) are laws that protect California workers from disability discrimination in the workplace. The ADA has classified Long COVID as a disability “if the person’s condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits’ one or more major life activities.”

Under the FEHA, Long COVID is also classified as a disability but the FEHA requires only that a mental and physical disability “limit” a major life activity (not a substantial limit, but a limit).

In other words, having Long COVID does not automatically mean that a person has a “disability” under the ADA or the FEHA. Unfortunately, there is no bright-line test for determining whether someone is disabled for purposes of the ADA or the FEHA. It is necessary to make an individualized assessment to determine whether someone’s Long COVID condition or any of their symptoms (substantially) limits a major life activity. Major life activities include but are not limited to caring for oneself, eating, performing manual tasks, walking, standing, communicating and working. You described your symptoms as something that limits your ability to work, walking and standing. It is likely that you would be considered as a person with a disability under the ADA or the FEHA, entitling you to reasonable accommodations.

What are Reasonable Accommodations?

Both the FEHA and the ADA require most California employers to give employees with disabilities “reasonable accommodations”. Employers who are covered by the ADA or the FEHA are required to provide reasonable accommodations unless the accommodation would be too difficult for your employer to provide, or doing so would endanger the health and safety of others, or change your job in a significant way.

An accommodation is reasonable when changes are made so that the employee with a disability can perform the essential functions of the job. This can be changing job duties or work schedules, providing leave for medical care, device, or technology. Essentially, these are changes that would allow employees to do their job safely and well.

How to Request Reasonable Accommodations:

The first thing you should do is to inform your employer that you have Long COVID in writing.
Note: your employer may request medical records directly related to disability and need for accommodation to determine whether you are a person with a disability.

Once you inform your employer, they must not discriminate against you and begin engaging in a good-faith interactive process to explore potential reasonable accommodations to help you perform your job effectively and safely.

Your employer can provide many different reasonable accommodations. It is very important that you maintain communications with your employer so you can explore together the accommodations that are right for you and your job. For example, you could get access to a chair so you can sit down when you feel dizzy while performing your job or you could be temporarily reassigned to a different position or be given different tasks that would allow you to sit down more frequently. You could also request a leave of absence under the Family and Medical Leave Act or the California Family Rights Act, which would entitle you to up to twelve weeks of unpaid job-protected leave.

Retaliation is Prohibited:

Retaliation is anything that changes the terms and conditions of your employment. Examples of retaliatory conduct include but are not limited to the following:

Increased harassment or verbal abuse for opposing unlawful conduct;
Changing schedules to an undesirable shift;
Assigning undesirable job duties;
Demotion or denial of promotion;
Relocation to an undesirable location;
Reduction in hours or pay;
Change in compensation plans or programs;
Denial of training or opportunity for advancement;
Discipline such as warnings, suspension or probation for trumped-up charges; and
Termination.

An employer must not retaliate against an employee for requesting accommodations. As such, you should not “get in trouble” for requesting accommodations for your medical condition.

If you feel that you have been discriminated against because of your disability and/or medical condition, or retaliated against for standing up for your rights and/or requesting accommodations, contact the employment attorneys at the Dolan Law Firm.

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The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly. The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly-available federal, state and local health organization guidance and government mandates.

Written By Christopher B. Dolan and Aimee E. Kirby

This week’s question comes from Nancy G. from San Francisco: Recently, I moved to San Francisco for a job opportunity. Like many people here, I sold my car and now get around by either walking, biking or taking Bart to work. While walking to and from work, I noticed many used needles on the ground. I know the City of San Francisco tries their best to provide services to those in need, I am worried about the increased number of uncapped and used needles on the ground. Although my shoes are protecting my feet, in the chance that I do not see a needle and it goes through my shoe, what are my rights or the rights of other people if we get pricked by a needle on the ground?

Thank you, Nancy, for reaching out and for your question. This issue is one that San Francisco residents and the community at large have been dealing with for a while now. San Francisco is known for our amazing people, culture, food, arts, cable cars, and bridges. But San Francisco is a major city in the world, and we have many city issues to deal with. In 2018 NBC did a report and looked at 153 blocks in San Francisco. They found discarded needles in 41 blocks and human feces on 96 of the city blocks. It appears that the problem has increased due to COVID-19. The concern with uncapped needles, as you are aware, is that they can be contaminated and can be a health hazard. The city of San Francisco and city leaders are in a constant struggle to maintain clean streets and free of discarded needles. The reality is that this is a very difficult job.

Our office has handled actions against hospitals for improper storage of needles, but your question about needles on the ground in public areas, is a very good question. The cause of action for having an unsafe premise would generally be one that would arise in Negligence. Negligence as a cause of action requires that the person sued:

had a duty to do something,
breached that duty by acting unreasonably,
the Plaintiff who sued the person was injured, and
the damages are casually related to the injury. Generally, business owners must keep the regress and ingress (exit and entrance) safe to their businesses.

Therefore, if the needle is close to any of these areas, and they were aware of this situation, you would arguably establish the first two prongs of Negligence. In much of San Francisco there are also local ordinances that make the business owners responsible for maintaining the sidewalk outside their property, which help you argue what is called negligence per se.

If your inquiry is how to hold the City of San Francisco responsible, that is a little more difficult. For a case against the City of San Francisco, the standard is different. You would have to allege that the needles make the walkway a Dangerous Condition of Public Property. For this cause of action, you have to prove the walkway was dangerous when used in a reasonable manner, that the City of San Francisco had knowledge of it, had the time and money to fix the condition, and you were harmed by the condition. Assuming you prove the needles constitute a Dangerous Condition, the City of San Francisco has a strong argument that they are doing everything possible to try to combat this problem.

A problem you have with both a cause of action against the property owners adjacent to the sidewalk and the City of San Francisco, is also what harm was suffered by you stepping on the needle. This may seem strange, because of course the emotional and physical response to stepping on a uncapped needle, not knowing what is in it, is extreme. Often times when a person is pricked accidentally, the needle is tested, the person is put on antiviral prophylactics and told to wait for the results of testing. The pain and worry someone has in this situation goes way beyond the momentary prick you feel. However, the law states that you may not recover damages, unless there was a physical harm caused by the needle. In the Macy’s California, Inc. vs. Superior Court case, a Plaintiff sought emotional distress damages for the fear she suffered after being pricked by an uncapped needle hidden in a returned jacket she bought. In finding that her case could not go forward, the court said:

The question before us is whether a routine needle stick constitutes harm for purposes of parasitic damages. We conclude it does not. In a routine needle stick, harm, if it occurs, takes place when a hazardous foreign substance, introduced to the body through the needle, causes detrimental change to the body. Macy’s California, Inc. vs. Superior Court, (1995) 41.Cal.App.4th 744.

Therefore, the courts are not ready to recognize the emotional response to this case, without an actual exposure to material within the needle that causes a detrimental change to the body. Thank you for your question. I am sure many people have thought about this when they see needles on the ground. Please continue to be safe and stay alert as you explore this wonderful city.

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