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.