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Tag Archives: Reasonable Accommodations

Speaking Up On Behalf Of Your Coworkers

 

Your employer probably does not welcome your advocating for your colleagues. Whether your advocacy is protected or not depends on what you are discussing, how you say it, and how many other employees it involves.

This is an area of law that flip-flops every few years, so make sure you speak to a reputable workplace attorney!!!

A recent decision by the National Labor Relations Board has expanded the protections for your workplace discussions. It’s complicated, but you may have the right to talk with other employees or the boss about things like workplace safety, your wages, the schedule, or other terms and conditions of employment for the purposes of “mutual aid and protection.” “Mutual aid and protection” is one of those legal phrases that has a special meaning, so you’ll definitely need to speak with a lawyer to know whether a particular comment is protected. Generally speaking, if your comment to coworkers is intended to initiate or prepare for group action, or to bring group complaints to management’s attention, it may be protected.

Discussions that only involve your individual circumstances are not protected.  And not every remark made in a group setting is protected. And even if your remark turns out to be protected, it may take months or years of litigation to ascertain that it was protected – during which time you are probably going to be looking for a job.

That said, Section 7 of the National Labor Relations Act gives many private-sector workers a federally-protected right to engage in protected concerted activity for the purposes of mutual aid and protection, and they don’t have to be in a union to exercise that right.

If your boss is on your case for a remark you made about a concern shared by your coworkers, talk to a workers’ rights attorney. It may turn out you have some protection.

 

 

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

Returning To Work During COVID-19

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.

It’s scary, or a relief, or a mixture of the two.  The workplace now has cleaning requirements, PPE requirements, screening requirements, and social distancing requirements.  You may have to take a test before you go in.  You may be on staggered shifts with your co-workers, working at the office on some days and at home on other days. There are rules about who can be in different parts of the workplace and under what circumstances.  There may be one-way hallways and closed breakrooms. The rules are changing every day, and it’s hard to know what you’re supposed to do and when.  Here are some frequently asked questions facing employees these days:

  • Can my employer require me to take a COVID-19 test before allowing me to return to work?
    • It depends on the type of test. 
      • Antibody tests: On June 18, 2020 the EEOC updated its guidance in response to new CDC guidance stating that antibody testing should not be used to make decisions about whether an employee should return to work. If an employer is insisting that you take an antibody test in order to determine whether you should be allowed to return to work, call an attorney.
      • Viral tests:  However, a viral test is still an acceptable return to work requirement, as it is job-related and consistent with business necessity.
      • Temperature checks:  An employer can require employees to have their temperature taken prior to entering a workplace.  However, if your employer insists on a particularly invasive temperature-taking method, call an attorney immediately. 
      • Written tests:  Many New York employers are required to have their employees certify that they are symptom free, COVID-free, and have not been in contact with a COVID case in the past 14 days.  This may be a paper you sign when you arrive at the workplace, or the employer may require you to fill out an online form before you even start your commute.  As long as these certifications only ask about your COVID-19 symptoms, whether you are COVID-19 positive, and whether you’ve been exposed, those certifications are allowed. If the employer is asking you other medical questions, call an attorney.
      • Watch this space.  The rules are changing almost weekly.  What was correct last week may not be correct this week.  When in doubt, call an attorney.
    • What’s the difference between an antibody test and a viral test?
      • Antibody tests involve blood work.  They show whether someone has previously had the virus. The EEOC considers an antibody test a “medical examination” under the ADA.  In light of the CDC’s guidance that state that antibody testing can produce false positives, the EEOC has deemed antibody tests as impermissible medical examinations or inquiries for current employees. 
      • Viral tests check the mucus to detect if a person is currently infected and contagious.  Viral tests can be achieved with swabs and are relatively non-invasive.
    • What about a new employer?
      • If you have a conditional offer of employment, the employer is allowed to send you for a medical evaluation to make sure you are fit to perform the essential functions of your job, as long as the employer requires all new employees to undergo testing.  Any medical exams are permitted between a conditional offer of employment and the employee’s start date. 
      • An employer may delay the start date or withdraw the job offer if there is medical evidence that you are currently positive for COVID-19.
  • Can my employer make me wear a face mask?
    • 99% of the time, yes.
    • If you have a disability that precludes you from wearing a face mask, you will need to request a reasonable accommodation, which involves your doctor providing medical documentation of your condition.
    • Be aware that COVID-19 is considered a “direct threat,” so if you have medical documentation showing that you cannot wear a face mask, and your job cannot be done remotely, the likely outcome is termination – not because of your disability, but because the employer can’t risk having you in the workplace without PPE.
  • What if a person in my home is at high risk of serious health problems due to COVID-19?
    • The employer is not required to accommodate you due to the health conditions of a person in your household.
    • If you cannot telework due to needing to care for a high-risk family member, you may be eligible for FMLA, EFMLEA, or New York Paid Family Leave.  Note that these protections require medical documentation showing that the person needs you to provide care – so if the concern is simply that you don’t want to expose a person who is capable of caring for themselves, you might not have much luck getting time off under these statutes.
  • What if I am recovering from COVID-19?
    • COVID-19 is considered a “serious health condition” for purposes of workplace law.  As such, you may have accommodation and leave rights under the ADA, FMLA, EFMLEA, New York State Human Rights Law, and/or New York State Paid Leave [not to be confused with NYS Paid Family Leave, which gives you time off to care for other people]. 
    • If you are recovering from COVID-19 and believe you are ready to return to work, or if you need some more time before you’re ready to return to work, your employer may need to get medical documentation from your health care provider.  The employer is allowed to get information that will enable it to determine whether you can perform the essential functions of your job, whether more leave is warranted, and what, if any, accommodations it might be able to offer you. 
    • If you are concerned about returning to the workplace due to an underlying condition that puts you especially at risk, then it’s appropriate to ask for a reasonable accommodation.  If your work can be done remotely, you may be able to get an accommodation that allows you to do telework.
    • If your job cannot be done remotely, it’s likely the only accommodation an employer can offer is more leave.  Do not ask for indefinite leave – an employer faced with a request for indefinite leave has an easy out for terminating your employment.  Make sure your leave request has a definite end date.  It is more difficult for an employer to deny a request for additional leave as an accommodation when there is a definite end date to the leave.

Reopening is a hopeful development for people who want to “get back to normal.” But, as continually repeated by the media, social media, experts, and politicians, there is no “normal” any more.  You may find yourself returning to a very different workplace than the one you left. The majority of employers are trying to create workplace rules that keep workers safe – but you don’t have to let yourself be exploited in the name of workplace safety.  The above guidance may help you navigate some common workplace pitfalls. When in doubt, call an attorney. 

Be safe.

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

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 ProcessAn 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.

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