Q: My coworkers and I have had to work from home due to COVID-19. We are slowly returning to the office and I am concerned. I am an older worker with well-controlled diabetes and I have family members at home who are immuno-compromised. I don’t want to be infected and I certainly do not want to infect my family. If I talk to my employer about this, I would like to know what my rights are. Please advise.
A: As California workplaces re-open, employees who are older or employees of any age who have an active or unstable pre-existing health condition, may request their employers for a “reasonable accommodation.” Under California law, there is a need for reasonable accommodation if the employee’s medical condition limits a major life activity, such as working. It can be argued that being able to work safely without getting sick (due to a one’s pre-existing health condition), may qualify an employee for reasonable accommodation.
Under California’s disability laws, an employee who has a disability should notify the employer of his or her condition in order to obtain reasonable accommodation. Once notified, the employer must engage in a timely, good faith interactive process to determine if reasonable accommodation can be made for the employee.
In the case of employees who may be at higher risk of contracting COVID-19, employers with 5 or more employees may have a duty to engage these employees in a timely, good faith interactive process in order to determine what reasonable assistance the employer may extend to the employee, in order to enable the employee to do his or her job despite their medical condition.
We have previously detailed in this column many examples of reasonable accommodation. However, specifically for COVID-19 related requests for reasonable accommodation, the following may constitute reasonable accommodation:
Allow the employee to continue to telework or work from home. Telework used to be controversial and looked upon as an inferior way of reporting to work. However, with the lockdown, and with many employees being sent home with laptops to work from home, the image of telework has gotten a vast makeover. Many industries are finding out that telework is a reasonable alternative to reporting to work in person. If the job can be done remotely, then it should be considered.
Provide employees with personal protective equipment (PPE). These may include face masks, gloves, face shields, hazmat suits, etc. Some employees may not be able to wear PPE for various medical reasons. The employer should further engage these employees in interactive process to determine if other types of accommodation may work instead.
Modify the work environment to reduce crowding or maintain social distancing. Some work places have erected plastic barriers between their employees and the general public. Other work places have reconfigured the work areas and cubicles to allow more spaces between employees.
Stagger work schedules so fewer workers are in the office at any given time. Some work industries may be able to open by shifts or may schedule employee work in such a way that there will be fewer employees in an enclosed space.
Extend medical or disability leave. Employees who went on medical disability leave due to COVID-19 may ask to have their leave extended until other types of accommodations can be available for them.
Transfer or re-assign employees to a vacant position that may reduce the risks of contagion for the employee. For example, at-risk employees may be assigned to positions that limit interactions with customers.
Offer part-time or modified work schedules or tasks. Employers may limit the total number of hours that employees stay in the enclosed workplace or interact with other people. Employers may offer part-time telework or work on a different shift that would mean a less crowded commute for employees.
The law does not obligate employers to provide the first accommodation requested by the employee. However, the employer has the obligation to continue to engage the employee in a good faith interactive process. The employee has the obligation to keep communicating with the employer about what they need to be able to do their job and avoid the risk of infection. In these pandemic times, it is everyone’s task to work together so keep themselves, their co-workers, and their families safe.
The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]