Returning to work in this pandemic: Do you need reasonable accommodation?

“However, the Order goes on to say that all persons living within the County of Los Angeles should remain in their residences whenever practicable.”

Q: SINCE the shelter-in-place order, I have been working from home. Now that we are re-opening, I heard from HR that we will be going back to the office soon. My work entails interacting with people throughout the day. I am older and have asthma, although this is well controlled. I understand that I am at higher risk for COVID-19. I want to keep my job but I also do not want to needlessly take risks. What are my rights?

On May 4, California announced that some retailers will be allowed to reopen with curbside pickup and physical distancing. As of this writing, the state continues to move further into phase two of its four-stage approach to reopening. On May 25, the state said it would allow places of worship and retail stores to let people in.

On May 26, the County of Los Angeles Department of Public Health issued its own Order which allows all persons to engage in all permitted activities but requires that persons practice Social (Physical) Distancing at all times while out in public and wear a cloth face covering.

However, the Order goes on to say that all persons living within the County of Los Angeles should remain in their residences whenever practicable. All persons who are age 65 years or older and anyone regardless of age who has an active or unstable pre-existing health condition, should stay home as much as possible, leaving only when necessary (such as to seek medical care, exercise, or obtain food or other necessities). “The Health Officer strongly recommends that employers offer telework or other accommodations to persons who are age 65 years or older and all people of any age who have an active of unstable pre-existing health conditions.”

As California workplaces re-open, employees who are 65 years or older or employees of any age who have an active or unstable pre-existing health condition, may request their employers for a “reasonable accommodation.” Under California law, there is a need for reasonable accommodation if the employee’s medical condition limits a major life activity, such as working. It can be argued that being able to work safely without getting sick (due to a one’s pre-existing health condition), may qualify an employee for reasonable accommodation.

In the case of employees who may be at higher risk of contracting COVID-19, employers with 5 or more employees may have a duty to engage these employees in a timely, good faith interactive process in order to determine what reasonable assistance the employer may extend to the employee, in order to enable the employee to do his or her job despite their medical condition.

We have previously detailed in this column many examples of reasonable accommodation. However, specifically for COVID-19 related requests for reasonable accommodation, the following may constitute reasonable accommodation:

1. Allow the employee to continue to telework or work from home;

2. Provide employees with personal protective equipment (PPE);

3. Stagger work schedules so fewer workers are in the office at any given time

4. Extend medical or disability leave;

5. Transfer or re-assign employees to a vacant position that may reduce the risks of contagion for the employee (for example, assign to positions that limit interactions with customers);

6. Offer part-time or modified work schedules or tasks

The obligation to make reasonable accommodation is intended to remove barriers to equal opportunities for disabled individuals. However, in these pandemic times, the duty to engage in interactive process and provide reasonable accommodation to at-risk workers take on more urgency. At the end of the day, the employer who provides reasonable accommodation to an at-risk employee is protecting, not just the employee, but the entire workforce.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

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