Tag Archives: Disability

UPDATE: The COVID-19 Vaccination and Your Workplace. Know Your Rights!

October 12th, 2021 by Sarah Ruhlen

Posted in COVID-19 In The New York Workplace, Workplace Rights |

Tags: Accommodations, ADA, COVID-19, COVID-19 Vaccination, Disability, EEOC, employment attorney near me, employment law firm, employment lawyer near me, fired, labor attorney near me, labor law firm, labor lawyer near me, Reasonable Accommodations, Telecommuting, Telework, terminated, workers rights attorney near me, workers rights law firm, workers rights lawyer near me, Workplace Rights

This article is an update of our January 27, 2021 blog post.

As more and more employers implement mandatory vaccination policies for employees, it’s important for employees to understand why the requirement is legal, and what their options are.

Legal challenges to vaccine mandates have not, so far, been successful. Applications for injunctive relief have been denied, and a federal court in Texas has rejected wrongful termination and public policy arguments. New York City Municipal Labor Committee, et al. v. City of New York, et. al, Index No. 158368/2021 (New York Co. September 22, 2021); Bridges, et al v. Houston Methodist Hospital, et al., H-21-1774 (SD Tex. June 12, 2021).

This said, employees who are afflicted with disabilities that make it dangerous for them to be vaccinated, as well as employees with sincerely-held religious beliefs, may be able to seek a reasonable accommodation. Each employer has its own process for requesting those accommodations, and determining whether there is a reasonable accommodation available involves an interactive process that requires the cooperation of both employer and employee. Below, we recap several FAQs from our previous vaccination article.

Can my employer demand that I receive the COVID-19 vaccine as a condition of employment?

Yes. Requiring the vaccine is not a medical exam, nor does it seek information about your current health status or impairments. A vaccine mandate does not in itself violate discrimination laws if the mandate allows a case-by-case assessment of whether there a reasonable accommodation could be provided for those who need it.

What if I do not want to be vaccinated because of my disability or because of my sincerely-held religious beliefs?

If your disability or religious beliefs prevent you from being vaccinated, you may request an accommodation from your employer. When you request an accommodation, your employer needs to determine if you, as an unvaccinated employee, pose a “direct threat” to the health and safety of yourself or others, and whether the threat can be eliminated or reduced by a reasonable accommodation.

If the assessment results in a finding of direct threat, your employer will try to determine if there is a reasonable accommodation that would allow you to continue to work. This interactive process includes getting information from you and your doctor or religious leader. It is important for employees to cooperate in the interactive process; failure to do so can result in termination. Keep in mind that your employer does not have to provide the specific accommodation that you request. Also, if your employer genuinely cannot come up with a reasonable accommodation, you may be terminated.

Can my employer ask for proof that I have received the COVID-19 vaccine?

Yes. Simply requesting proof of a COVID-19 vaccine is not likely to elicit information about a disability and, as such, is not a disability-related inquiry that would trigger ADA or other health information privacy protections. However, if you have not been vaccinated due to a medical condition, you’ll need to be prepared to request an accommodation, which will require you to provide medical information to allow the employer to determine what kind of accommodation can be provided.

Do I have ADA protection if my employer administers the COVID-19 vaccine ?

Yes. The pre-vaccination medical screening questions are likely to elicit information about your health. When these questions are asked by your employer (this might happen in the healthcare context), they meet the ADA definition of a “disability-related” inquiry, and, as a result, you are entitled to ADA protection. The ADA requires that the disability-related screening questions be “job related and consistent with business necessity.” If you are concerned that your employer’s mandatory vaccination program does not meet this threshold, contact an attorney for advice.

Workplace Bullying—Is it illegal?

February 3rd, 2021 by admin

Posted in Uncategorized |

Tags: bullying, Disability, employment attorney near me, employment law firm, employment lawyer near me, gender, harassment, labor attorney near me, labor law firm, labor lawyer near me, race, toxic work environment, workers rights attorney near me, workers rights law firm, workers rights lawyer near me

By Diane Williamson
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 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.

Are you being bullied at work?

Unfortunately, more often than not, the law will not offer protection or remedy if you find yourself in a toxic work environment resulting from bullying by your co-workers or managers. Indeed, there is no law against workplace bullying in New York, and, as court decisions indicate, the law does not create “a general civility code” for the workplace.

Nevertheless, there are some instances when workplace bullying may be illegal. The law may protect you if the bullying is targeted at you for a specific reason such as your race, gender, or other classification that is protected by the law. Under New York anti-discrimination law bullying is illegal if it is based on race, color, national origin, ethnicity, religion, veteran status, genetic makeup, disability, age, or sex, gender, sexual identity, familial status, marital status, and domestic violence victim status.

So, what might actionable bullying look like? Imagine an employee who is targeted because of her age or because she asked for a reasonable accommodation for a disability. Not all of the harassing behaviors need to make explicit reference to the protected characteristic in order for the bullying to count as discrimination. Also, a combination of bullying based on more than one of the protected categories counts as harassment. And the employee who complains about harassment need not be the intended recipient of the abusive communications—if the harassers are speaking derogatorily about someone else, those comments may still contribute to the hostility of the work environment. While the plaintiff must demonstrate that the harassment altered the terms and conditions of employment, the harassing behaviors might also take place outside of work—on social media, for example.

In 2019 New York updated its law that prohibits harassment to better prevent against all forms of discrimination at the workplace. Now New York law instructs courts to use a stricter standard. While courts should not consider “petty slights and offences” to be harassment, bullying that targets someone because of protected characteristics should be considered discrimination if it changes the terms and conditions of employment for the victim.

In addition to New York’s anti-discrimination laws, there are other laws that hypothetically could offer some relief for bullied employees. For example, bullying might be illegal if it is in retaliation for making a discrimination complaint, complaining about unsafe or illegal activity, making a wage and hour complaint, or because of lawful recreational or political activities conducted outside of work. Nevertheless, the law may be less likely to punish bullying for some these reasons.

If the bully’s behavior rises to the level of being “outrageous” and “intolerable in a civilized society,” you may have a claim for intentional infliction of emotional distress against the bully, or if you have been the victim of offensive touching or threatened touching, you may have a claim for civil battery or assault. If the workplace bullying causes stress that exceeds normal work stress and it causes you to be unable to work, you may also have a Workers’ Compensation claim. Of course, the only way to truly gauge whether your claim is likely to be successful is to speak with a lawyer.

If you are faced with regular bullying at work, it is a good idea to keep a record of your experiences. You will most likely forget the little details of the day-to-day harassment unless you write them down. If you send an email to yourself that recounts the events of the day (not on your work email), the record will also be time-stamped. It might be the case that you only come to realize later that the bullying is related to a protected characteristic. To be on the safe side, start documenting the bullying as soon as it starts on the chance that you may later realize that it is illegal. Plus, writing down the harassing behavior may help to delay your response and defuse a potentially volatile situation. Overall, take care of yourself and start applying for new jobs. Hopefully, a better situation is right around the corner.

COVID-19 In The New York Workplace – Part V: Accommodations

April 1st, 2020 by Sarah Ruhlen

Posted in COVID-19 In The New York Workplace |

Tags: Accommodations, COVID-19, Disability, Reasonable Accommodations, Workplace Rights

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 315-471-0405 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.