How Employees at High Risk for COVID-19 Can Stay Safe in the Workplace
During the COVID-19 Pandemic, individuals with serious and chronic health conditions have been determined to be at a higher risk of getting extremely ill from COVID-19 should they contract the virus. These underlying conditions have been determined by the Center for Disease Control ("CDC") to include:
- chronic lung disease or moderate to severe asthma;
- heart conditions;
- severe obesity;
- diabetes; and
- various other conditions including auto-immune deficiencies.
As a result, the CDC currently recommends that, in the midst of this COVID-19 outbreak, all individuals with such disabilities should try to stay home.
If your doctor determines that, because of your disability, you should self-isolate due to your increased risk of severe illness or death should you catch COVID-19, but your employer is still requiring that you physically come in to work, you may have the following options:
1. The “Reasonable Accommodation”
In order to comply with the CDC’s guidance regarding their health conditions (which count as disabilities under the Americans with Disabilities Act), individuals may seek a reasonable accommodation for their disability in order to remain safe during the COVID-19 outbreak.
Asthma or Other Chronic Diseases
Employees with asthma, or other chronic diseases that may leave them more vulnerable to the COVID-19 virus, may request a reasonable accommodation from their employer.
The ADA requires all employers with fifteen (15) or more employees to provide reasonable accommodations to employees with a disability so long as that accommodation does not impose an undue burden on the employer. Further, individuals are considered to have a disability under the ADA if they have a physical impairment that substantially limits a major life activity.
The ADA continues to require reasonable accommodations be given to individuals with disabilities during a pandemic. Thus, just because COVID-19 may have changed certain ways in which businesses operate, it does not allow for employers to avoid providing reasonable accommodations to their disabled employees.
Working from home may be considered a reasonable accommodation, especially during the COVID-19 outbreak.
A reasonable accommodation can include working from home.[i] But whether a work-from-home arrangement is a reasonable accommodation for a specific job is a fact specific issue.[ii] For example, a work-from-home arrangement might be reasonable for a software engineer but not for construction worker because the software engineer can more easily complete their essential job functions from home.
Employee and employer must agree on reasonable accommodations.
Finally, it is important to note that any request for a reasonable accommodation requires that the employee and employer engage in an interactive process to determine the best accommodation for both parties. This process helps ensure the accommodation provided to the employee is not overly burdensome on the employer’s business model.[iii] Still, the employer MUST engage in this process with the employee and may not simply deny an accommodation request outright.[iv]
How to Request an Accommodation
A request for any reasonable accommodation should be sent to your supervisor or HR department in writing and should include:
- An explanation of your disability.
- The reason you are requesting the accommodation including why you are requesting the accommodation now when before you had not (i.e. mentioning that due to the COVID-19 an accommodation is being requested due to the increased risk posed to you by the COVID-19 outbreak).
- Your requested accommodation (which might include: working from home, teleconferencing with clients, working from a space at least 6 feet away from the nearest co-worker, etc.).
When Employer Accommodations are Insufficient
If your employer suggests an accommodation you feel does not sufficiently address your health concerns, you do not need to accept it / agree to it. Finding an accommodation that works for both your disability and your employer must be an interactive process between you and your employer. So your employer cannot simply say “No,” and neither can you. You might not get every accommodation you ask for, but the idea is to find a solution that adequately accommodates your disability while still allowing you to do your job to the same level as you would have before the accommodation became necessary.
2. Qualifying for Emergency Paid Sick Leave
The Emergency Paid Sick Leave Act (EPSLA) provides up to two weeks (80 hours) of paid emergency sick leave for full-time employees and a pro-rated amount of paid time for part-time employees when a health-care provider has advised the employee to self-quarantine due to concerns related to COVID-19.[v] This benefit can be used in addition to any paid time-off benefits normally provided by an employer that has been accrued by the employee.
This law was just passed and is still very new, so there is no definite answer as to whether individuals with disabilities would qualify for this emergency paid sick leave if they are recommended by a doctor to stay at home due to the increased risk of becoming severely ill from contracting COVID-19.
However, the Department of Labor recently issued guidance providing that being instructed to self-quarantine by a health care professional because the individual is “particularly vulnerable to COVID-19” entitles that individual to the 80 hours paid leave.[vi] Essentially, an employee who is recommended by a health care professional to stay home for a period of time due to concerns of the employee getting COVID-19 would likely be determined to be self-quarantining due to reasons related to COVID-19. Providing that employee with 80 hours paid leave that he or she could use to stay home from work due to their health condition as recommended by their doctor.
Finally, a self-quarantining individual must be unable to work in order to be entitled to 80 hours paid leave under the EPSLA. This inability to work includes an inability to telework. The ability to telework is determined by whether an individual’s employer:
- permits work from where the individual is self-quarantining (often home),
- has work for the employee to do from the self-quarantine location, and
- there are not any circumstances that prevent the employee from performing that work (i.e. due to the employee contracting COVID-19 it has become impossible to perform work while sick).[vii]
3. Taking FMLA Leave to Avoid Going to Work with a Health Disability During the COVID-19 Pandemic
Individuals who work for an employer with 50 or more employees, a public agency, or a school (private or public), regardless of the number of employees they employ, may be entitled to up to twelve (12) weeks of unpaid leave under the Family Medical Leave Act (FMLA) if the individual has:
- been an employee of the employer for at least twelve (12) months
- worked at least 1,250 hours of service during the twelve (12) months, before taking leave (an average of a little more than 24 hours a week every week for the year),
- works at a location where the employer has fifty (50) employees within seventy-five (75) miles, and
- a serious health condition (including asthma, heart disease, and other health conditions listed above) that makes the individual unable to perform the essential functions of his or her job.
4. Filing a Short Term Disability Insurance Claim
Finally, if your employer provides you with Short-Term Disability Insurance, or if you have purchased a private Short-Term Disability Insurance plan, your policy might include provisions that qualify you to receive benefits for being unable to do your essential job functions due to your health conditions and your health provider’s recommendation that you do not leave the house amid the COVID-19 pandemic.
Short-Term Disability Insurance will usually provide a percentage of your regular wages over a period of time specified by the terms of the plan.
Contact Our Attorneys
If you or a loved one is an individual with serious and chronic health conditions and are at higher risk for contracting COVID-19, you may have legal questions about your employment options. If you’d like to discuss options and receive legal advice, please contact Hawks Quindel, S.C.
This article was jointly authored by Attorney Summer Murshid and Law Clerk Gregory Stratz.
- [i] 29 C.F.R. § 826 (2020).
- [ii] Id.
- [iii] See Bilinsky v. Am. Airlines, Inc., 928 F.3d 565, 570 (7th Cir. 2019).
- [iv] Id. at 573.
- [v] See EEOC v. Sears, Roebuck & CO., 417 F.3d 789, 797 (7th Cir. 2005).
- [vi] See id.
- [vii] EPSLA Section 5102(a)(2).