Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 812-272-1474 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.
Generally speaking, under both the ADA and the New York State Human Rights Law, a disabled employee should be provided reasonable accommodations. What constitutes a reasonable accommodation in the era of the coronavirus?
Accommodations: If an accommodation would allow an employee to perform the essential functions of the job, an employer is required to provide that accommodation unless the accommodation would constitute an “undue hardship” for the employer. “Undue hardship” usually (but not always) means the accommodation would be cost-prohibitive. For instance, depending on the size and financial condition of the employer, arranging to have a desk raised a few inches in order to accommodate a wheelchair may not be an undue hardship, but installing an elevator might be. The nature of the work to be performed is another consideration; for instance, it could be difficult, if not impossible, for a factory worker to telework; on the other hand, an accounting office may have a relatively easy time moving its employees to telework.
Accommodations already provided in the workplace may also be required in telework situations, provided they do not create undue hardship. For example, Example C of the EEOC guidance found at https://www.eeoc.gov/laws/guidance/upload/pandemic_flu.pdf indicates that, if an employee has a screen reader as a reasonable accommodation at work, and the employer issues notebooks to its employees so that they can telework, the employer should issue that employee a notebook with a screen reader installed.
If you are at heightened risk, personal protective equipment [“PPE”] may be considered a reasonable accommodation. To get PPE as a reasonable accommodation, you will probably need to have your doctor fill out paperwork that will allow the employer to determine what type of PPE it can provide to you without undue hardship.
The Interactive Process: An employer does not have to provide the exact accommodation requested. If an employer receives an accommodation request, the employer and employee have a duty to engage in an “interactive process,” which is usually a conversation or series of conversations to determine what accommodation can be provided without undue hardship. It is not a bad idea for both parties to document these conversations. For example, if an employee asks for face masks as a reasonable accommodation but the employer cannot get hold of face masks because of the world wide shortage, it may be an undue hardship for the employer to provide them. The interactive process might result in an alternate arrangement, for instance, allowing the employee to use an unused office with a door that closes and prohibiting other employees from entering the office.
The EEOC notes that due to the massive workplace disruption caused by the pandemic, employers may take longer than usual to respond to requests for reasonable accommodations. At least for the present, such delay is not grounds to charge an employer with failure to accommodate.
What if your doctor states that you should stay home due to a heightened risk of contracting coronavirus?
First, remember that under the New York State Paid Leave Act, a note from your doctor by itself is not sufficient to get you coronavirus-specific leave. New York coronavirus leave is only available if a government entity has ordered you to quarantine or isolate. (By contrast, under the FFFCRA, effective April 1, a doctor’s note will get you coronavirus leave. Please see Parts I, II, and III of this series for further discussion of eligibility requirements and paid leave amounts.)
If you do not have coronavirus symptoms, but have a condition that puts you at increased risk, you need to speak with your employer about getting a reasonable accommodation. This may mean having your doctor fill out paperwork specifying your limitations and what accommodation you might need. If it does not present an undue hardship (say, in the accounting example above), telework can be a reasonable accommodation.
Some industries need people on-site. For example, health care workers and grocery store stockers are on the front lines of this crisis. If you are in an industry that does not lend itself to telework, and your doctor says you have a heightened risk for coronavirus, then you may be able to request leave as an accommodation.
Absent undue hardship to the employer, leave can be considered a reasonable accommodation. However, leave of indefinite duration is not “reasonable.” Therefore, if your doctor says you should stay home “until further notice,” the employer may not be required to provide you leave as an accommodation.
The leave may be unpaid. Depending whether you fit the eligibility requirements of the New York State Paid Leave Act or the FFFCRA, you may or may not be entitled to paid leave. Please see Part III of this series for a discussion of some of your options if you cannot get paid leave.