As schools across the country are preparing to open up, I have seen that many educators are very concerned about returning to work due to COVID-19 – with good reason.
If you have a medical condition which puts you at a high-risk for developing serious complications from COVID-19, you may be entitled to a reasonable accommodation at your place of work, including schools.
The Americans with Disabilities Act (commonly known as the “ADA”) is a federal law that protects individuals from discrimination on the basis of disability. While the ADA can apply to many situations, including where you live, shop and eat, how it applies in the workplace is one of the most important aspects of the wide-reaching law.
The ADA mandates that individuals be given a reasonable accommodation in order to work if they either have a disability, or are regarded as having a disability by their employer.
What qualifies as a disability?
The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” This includes even if you have a history of such an impairment, or if your employer simply thinks of you as, or treats you as if you are, disabled. The condition does not have to be permanent to qualify as a disability.
Major life activities including things such as “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”
It is still an open question of whether COVID-19 itself will be considered a disability – although some states, including Michigan, have enacted executive orders making it illegal under state law to discriminate against a worker who has COVID-19. But if you have an underlying condition that might make contracting COVID-19 more serious, then you likely have a disability for purposes of the ADA. These conditions could include diabetes, heart disease, cancer, or asthma, just to name a few. The ADA intentionally does not include names of specific conditions, but courts have interpreted these and other types of conditions as qualifying under the ADA.
What is a reasonable accommodation?
After it is determined that you have a disability, your employer must give you an accommodation to help you do your job. Whereas in times when there is no pandemic, this could include letting someone come in to work later if they have a sleep disorder, for instance, during the current pandemic, a reasonable accommodation might include letting you work from home. It could also include letting you do a different job, if one is available that you are qualified to do. For instance, if you are diabetic and work in a nursing home with a lot of COVID-19 cases, you may be permitted to take an alternate job that does not require you to come in contact with others, such as making calls to set up appointments.
Again, what it means to give a reasonable accommodation is not defined in the statute and is assessed on a case-by-case basis, and it takes into account the demands and requirements of your particular workplace.
How can I get an accommodation from work due to COVID-19?
If you believe you have an underlying condition, or if you have already been diagnosed with one, that puts you at a higher risk of developing serious complications from COVID-19, the first thing you should do is obtain a note from your medical provider indicating that you cannot do your job without an accommodation due to your disability. If the provider has a specific suggestion for the type of work you can do, such as telework, then you can ask them to indicate that in the note. The note should also include the duration of the restriction, which can vary widely.
Present this note to your employer (usually someone in the human resources department) and ask them if you can do your job remotely, or if there is another job that you can do within whatever restrictions your medical provider indicated in the note.
What if my employer refuses my request for an accommodation?
If your employer provides you with specific reasons why your request is being denied, if the issue is something that your medical provider can address, you could ask them to make any suggested changes to the note that will help you get your accommodation approved.
But if your employer persists in not accommodating you, or if you get fired, demoted, or face any retaliation for even asking for the accommodation, give us a call
If you have any questions regarding your rights as an employee during this time of uncertainty, please feel free to contact us by calling 844-835-2993. Our team will be happy to discuss your potential options today! We also offer free consultations to all prospective clients.
Carla D. Aikens, P.L.C.
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