Staying Safe Back at Work

​Protecting Employees Susceptible to COVID-19 Complications

​Individuals who have medical conditions that make them susceptible to COVID-19 complications may be entitled to protections under the Americans with Disabilities Act.  The same is true for individuals who have recovered from the virus but continue to suffer from fatigue, respiratory issues, or difficulty concentrating.
 
Your employer may be required to give you a reasonable accommodation such as changes in your work schedule or location, physical changes to your workspace, or technology solutions that allow you to work remotely.
 
Your right to an accommodation will depend on the nature of your medical condition, the nature of your work, and whether a reasonable accommodation is possible.
 
This post provides some basic information about your right to a reasonable accommodation.  If you have specific questions, call us at (212) 601-2728 to schedule a consultation.
 
The Broad Definition of Disability
 
A disability is any mental or medical condition that substantially limits your ability to perform a major life activity as compared to most people in the general population.
 
Major life activities include a functioning immune system and normal digestive, bowel, bladder, neurological, and respiratory functions.  Major life activities also include manual tasks, walking, standing, lifting, bending, speaking, breathing, concentrating, thinking, communicating, and working.
 
Individuals with weakened immune systems may require greater protection from possible COVID-19 infection than people in the general population.  Individuals who have recovered from a COVID-19 infection may still have effects such as memory loss, fatigue, fever, shortness of breath, chest pain, and severe diarrhea. 
 
These conditions may be considered disabilities that justify asking your employer for a reasonable accommodation.
 
Your Right to a Reasonable Accommodation
 
Once it is established that you have a disability, the key question becomes whether you can perform the essential functions of your job with a reasonable accommodation.  What is reasonable will depend on your specific circumstances.
 
Many different types of accommodations have been found to be reasonable.  Simple changes such as adjusting your work schedule, greater distancing between desks or work stations, and the provision of masks and hand sanitizers are almost certainly reasonable accommodations today, because most employers are taking these types of precautions for all employees.  It also may be reasonable to require an employer to modify an employee’s workspace, provide technology to allow an employee to access files and work remotely, allow an employee time for medical appointments, and re-assign marginal job functions to other employees.
 
The employer does not have to create a new position or to spend an unreasonable amount of time or money to accommodate you.  Reasonableness will be decided based on the specific type of work you do and the cost of providing an accommodation.
 
Finding a Reasonable Accommodation
 
The process of finding a reasonable accommodation begins with you, the employee.  Unless your disability and need for accommodation are obvious, you must tell your employer that you need an accommodation.  Once you do that, the law requires your employer to engage in a good faith, interactive process with you.  You and your employer must work together to determine whether a reasonable accommodation is possible.
 
You should be prepared to propose a reasonable accommodation that will allow you to perform the essential functions of job without imposing an unreasonable burden on the employer.  For this reason, we recommend that you speak with your doctor or other healthcare provider before talking to your employer.  Ask your healthcare provider to advise you on what you should and should not be doing at work – and whether you should go to an office or other workplace at all.
 
By coming prepared with a reasonable proposal, you will force your employer to accept your proposal, come up with reasonable alternatives, or justify their refusal to accommodate you.
 
Protection from Retaliation
 
An employer is not allowed to retaliate against you because you asked for an accommodation.  The law is very strict in this respect, and retaliation is fairly easy to prove.  If you asked for an accommodation and the employer took an adverse action against you shortly after that, you have a good case for compensatory and punitive damages, as well as attorneys’ fees and costs.
 
Monetary Damages and Reinstatement
 
If your employer refuses to give you a reasonable accommodation for a disability, then you have the right to recover compensatory damages for lost wages and benefits, out-of-pocket expenses, and emotional distress, plus attorneys’ fees and costs.  Depending on how the employer responded to your request, you may also recover punitive damages.
 
Getting Started
 
If you need an accommodation to perform your job without jeopardizing your health, here are three steps you should take as soon as possible.

• Talk to your doctor or other healthcare provider.  Describe your workplace and the nature of your work.  Ask them what steps your employer should take to protect your health.  Having a medical expert describe the conditions that will keep you safe will give you a solid ground for requesting an accommodation.

 

• Notify your employer that you need an accommodation.  This can be done by notifying your human resources department or a supervisor or manager.  Make the request in writing or by email so you have a record.  Promptly complete and return any forms they give you to fill out.

 

• Consult with an experienced employment lawyer.  While most employers will work with you to reach a reasonable accommodation, you should get legal advice to make sure you have acted properly in case you have to bring a legal action.

 
You can schedule a consultation by calling John Howley, Esq. at (212) 601-2728.