Many California employees are starting to return from furloughs and remote work which was used to comply with state regulations and mitigate risk during the COVID-19 pandemic. This includes may elderly and pregnant workers who are at higher risk for severe complications if they become infected with Coronavirus. Employers are prohibited by the federal Equal Employment Opportunity Commission (EEOC) from keeping these at-risk employees from working if they want to; this may lead to discrimination claims.
Discrimination claims also arise from violations of the Americans with Disabilities Act (ADA), which requires reasonable accommodations for employees with disabilities or who have elevated risk for serious cases of COVID-19. It is important for employees as well as employers to know California’s Department of Fair Employment and Housing (DFEH) mandates that any employer with five or more workers make reasonable accommodations if appropriate; however, many employers and employees alike fail to understand what that means.
EEOC Accommodation Guidance
To help clarify what reasonable accommodations for high-risk employees in the COVID-19 pandemic is the EEOC created additional guidance for employers on workplace protection rules. Employers must provide a safe work environment – this means working with employees who have disclosed underlying or pre-existing health conditions, which make them at-risk employees under law.
When it comes to COVID-19, the Centers for Disease Control and Prevention determined workers are at elevated risk of a severe COVID-19 case if they are immunocompromised or have any of the following:
- Chronic kidney disease currently requiring dialysis;
- Liver disease;
- Severe obesity;
- Chronic lung disease;
- Diabetes; and/or
- Moderate or severe asthma.
While COVID-19 is a direct threat according to health officials at the local, California, or federal level, employers are exempt from the ADA’s usual prohibition on asking employees about disabilities such as conditions putting them at higher COVID-19 complication risks or requiring medical examinations.
If an employer requests a reasonable accommodation, their employer must engage in a prompt, interactive accommodation process. If there are essential functions the workers cannot perform, they should discuss how to accommodate them. Even if an employee doesn’t request reasonable accommodation, employers must present the option to begin the interactive process if they learn of possible accommodation need through avenues such as direct observation, exhausting leave benefits, or a third-party report. Topics may include:
- How a proposed accommodation addresses the limitation;
- How an accommodation enables the worker to perform essential functions of a job; or
- How their disability limits them.
Employers are also allowed to request documentation if a worker’s disability isn’t obvious.
Exclusion from the Workplace
The EEOC mandates employers thinking of excluding a worker from the workplace due to elevated risk must:
- Apply a direct threat standard, which means the employee must pose direct threat to themselves or others to be barred from the workplace. This means a reasonable accommodation can’t eliminate or reduce a significant risk to themselves or others of substantial harm to health or safety.
- Conduct an individualized assessment on the worker’s disability based on reasonable medical judgment.
For example, an employee with elevated COVID-19 risks may be able to work from home, be reassigned to another position temporarily, or offered leave as opposed to being excluded from the worksite.
Speak to a Lawyer Today
The COVID-19 pandemic has created new situations California employees and employers must face together. However, it’s important to know you are still protected from discrimination at work and can get help if it happens to you. The skilled California employment law attorneys at Walton Law, APC have years of experience helping employees like you get justice for discriminatory actions; we also ensure you don’t miss critical filing deadlines for administrative complaints or legal claims and have strong representation before government agencies. Contact us 24/7 by calling (866) 338-7079 or using our Contact Us page to schedule a case review today. The initial consultation is always free. Let our attorneys review your situation and help protect you from discrimination during these difficult times.