Businesses throughout the country are beginning to reopen. While many people who may have experienced layoffs or reduced hours anxiously await returning to work, this poses a grave concern for employees who, because of a medical condition, are at high risk should they become ill with COVID-19. Can you be forced to return to work, even if you don’t feel safe doing so? What kinds of legal protections are available to you in this situation? Your Ohio Employment Attorney breaks down what you need to know about your right to request a Reasonable Accommodation under the Americans with Disabilities Act.
What Laws Protect Me From COVID-19 Exposure in the Workplace?
Aside from the protections offered under the Family First Coronavirus Response Act and the increased unemployment availability in Ohio, the two main laws covering this kind of situation are the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act of 1990 (“ADA”). The FMLA offers qualifying employees up to 12 weeks of unpaid leave to care for themselves or for a child, spouse, or parent with a serious medical condition. For more information on the FMLA, check out our FMLA practice area page.
The remainder of this blog post will focus on the ADA and your right to request a reasonable accommodation to enable you to safely perform your job and limit potential exposure to COVID-19. The ADA applies to employers with 15 or more employees, and all employees are covered, including those who have been deemed “essential” workers.
The ADA enables employees to request accommodations that allow them to safely perform their jobs and lower their risk of exposure to COVID-19. However, the accommodation requested must be reasonable based on the specific facts and circumstances of your case. Accommodation requests are NOT reasonable if they would eliminate one of your essential job functions or lower production standards. Your employer generally must grant a reasonable accommodation request, but they can avoid doing so by establishing that your requested accommodation would pose an “undue hardship” to the business. For example, if your proposed accommodation would be expensive or impractical to implement, your employer may be able to avoid granting the accommodation based on an undue hardship defense.
What do I Have to do to Request an Accommodation?
It is the employee’s obligation to inform his or her employer that a reasonable accommodation is necessary. Thus, you must take the first step to inform your employer, either verbally or in writing, that your medical condition places you at high risk if you become exposed to COVID-19. Your employer can then ask follow up questions and/or request medical documentation to support your need for an accommodation. Permissible questions include: (1) how your medical condition places you at high risk for COVID-19 exposure; (2) how your proposed accommodation will limit the potential for exposure to COVID-19; and (3) whether your proposed accommodation will still allow you to perform all the essential functions of your job.
If you have a qualifying disability, your employer is required to engage in an interactive discussion with you to determine whether and how your disability can be best accommodated. If you are currently working from home but will be asked to return to your place of work soon, you can begin this process now. Agreeing on a reasonable accommodation ahead of time will offer you peace of mind and give you plenty of time to obtain any necessary medical certification if needed.
What Kind of Accommodations Can I Ask For?
Whether an accommodation request will be considered reasonable depends on the specific facts and circumstances of your situation. However, the Equal Employment Opportunity Commission has issued a Guidance Sheet that names the following as potential reasonable accommodations:
- Relocating the employee’s work space away from others;
- Reassignment to a job that involves less direct contact with others;
- Telework (if your job can be performed remotely);
- Additional unpaid leave;
- Physical barriers used to separate the employee from others;
- Additional Personal Protective Equipment (“PPE”), such as gloves and a mask;
- Modifying the employee’s work schedule; and
- Taking away marginal (NOT essential) functions of the employee’s job that may increase the risk of exposure to COVID-19.
This list is not exhaustive, and both employees and employers will need to be flexible and creative when determining the best ways to protect themselves when returning to work.
What if I Have Already Been Diagnosed With COVID-19 or Begin to Experience Common Symptoms of COVID-19?
If you have been diagnosed with COVID-19 or begin experiencing common symptoms associated with COVID-19, then your employer may prohibit you from coming in to work, since your symptoms pose a direct threat to your co-workers. However, your employer must make this decision based on reasonable, medical judgment relying on the most current medical evidence available. To make this determination, your employer may ask you whether you have experienced symptoms associated with COVID-19 (shortness of breath, fever, dry cough, etc.) and your employer may take your temperature. If you have already been sent home, your employer may also require you to obtain a doctor’s note clearing you to return to work after you recover.
Each situation is different, and a thorough review of the facts of your situation is likely necessary to determine the best options for you. If you need help with requesting a reasonable accommodation, or if you have other questions about COVID-19 and your employment, reach out to your Ohio Employment Lawyer today to schedule a free consultation.