As employment lawyers, the most common questions we are hearing are “My company is trying to make me come back to work in the office, but do I really have to put myself at risk?” and “Doesn’t my boss need to let me continue to work from home?” For people who have an underlying medical condition – like diabetes or asthma or HIV – the answer is clearly that employers must engage in a good faith interactive process to determine if reasonable accommodations can be made to preserve the health of the employee. And that certainly means evaluating work from home as an option. But what about for those who are at risk simply because they lack the antibodies that could protect them from COVID-19? Can they be entitled to accommodation too?
The answer may surprise you. Right now, strange as it may sound, the majority of Californians have something that certainly appears to qualify as a “physical disability.” The definition of physical disability under California’s Fair Employment and Housing Act includes a physiological condition that affects the body’s immunological system to the extent that it limits a person’s ability to participate in one or more major life activities.
The physical condition almost all of us are living with is that we lack protective antibodies to the novel coronavirus. All of us without these antibodies are suddenly at risk. This physical condition limits a breathtaking range of our major life activities, from socializing, shopping, and interacting with others to engaging in recreational activities and going to work. To protect their body from contracting COVID-19 (which can cause serious illness and death), a person without the antibodies is required to limit exposure to other people and to respiratory droplets as much as possible.
It might seem unusual to say that almost all Californians now have a “disability.” But “unusual” is the right word to describe these times. We’re all dealing with a novel virus that spreads more rapidly and kills more readily than the “usual” viruses, like the seasonal flu, or like viruses for which there’s a widely-available vaccine, such as the measles. That’s all the more reason why the novel coronavirus calls for a novel interpretation of disability rights law.
So, what are the objections to this argument that FEHA covers all of us who haven’t acquired antibodies by contracting and recovering from COVID-19? Some may instinctively argue that “it can’t be a disability if everyone has it.” But there’s no law or authority that defines disability as something only a minority of persons have. Conditions related to pregnancy count as a disability, and over 80% of women experience pregnancy at some point in their lives. And the law the law that immunodeficiency qualifies as a disability if it limits major life activities.
Employers will likely protest that “it’s too hard to accommodate everyone.” But employers already are. Employers have been tolerating work-from-home for almost five months in the Bay Area. If it’s been tolerable for five months, why wouldn’t it be tolerable for six months? Or nine months? Or until there’s a vaccine? Under the FEHA, an employer must provide reasonable accommodation unless it is an “undue hardship.” But for jobs that the pandemic experience has shown can be done from home, this is not going to be a successful argument.
Ultimately, employers should also be considering the role they have to play in serving the public interest. Providing work-from-home accommodations promotes both the public health — in that it allows more people to stay home if they can do their jobs from home — and it helps stave off the worst economic consequences of the pandemic. Employers should not want to increase the risk of COVID infections because the more people who are sick, the worse the economy does and the sicker their own workforce will be. They should also want to do everything possible to avoid having to fire and replace people. This once-in-a century public health crisis has not just caused mass death and illness, it has also caused the economy to hemorrhage millions of jobs. Yet labor economists say that the economic depression will be worse if people are untethered from their jobs. Keeping people employed – even if on unpaid leave, furlough, or reduced wages – rather than cutting people off from their employment — is more likely to keep a minor depression from turning into a Great Depression. Thus, allowing workers to do their jobs with modifications and accommodations during the time of COVID-19 keeps more people on payroll – which is better for the economy and the country overall.
Finally, this is only a temporary situation, as interminable as it seems. Once there are widely available vaccines or treatments, “not having covid antibodies” may no longer qualify as a physical disability. At that point, the justification for work from home as a reasonable accommodation will no longer exist. But that’s another story, for another time – hopefully in the not too distant future.