LVBH Attorney Hilary Hammell sat down with Jeannine Etter of KPFA Radio to discuss employer vaccine mandates. Ms. Hammell pointed out that employers have a duty to maintain a safe workplace and to keep employees safe from known hazards, and she discussed how employers should handle requests for exemptions from vaccine requirements.
LVBH’s Wendy Musell will be on the panel of a free webinar exploring legal issues on whether religious objections to being vaccinated can or should be accommodated. The virtual event, “Is There a Needle in the Haystack? Exploring Religious Objections to Vaccine Mandates,” will be held on Thursday, September 23, 2021 at 11:30 a.m. PDT.
The webinar is presented by the American Bar Association Section of Civil Rights and Social Justice.
For many folks, working from home – since March of 2020 – has taken a huge toll on our health and well-being. For some employees with disabilities, such as ADHD, depression, or anxiety, working at home can be even more difficult. Social isolation and the lack of structure can exacerbate depression, anxiety, ADHD, or other mental health symptoms. It’s not surprising, then, that studies confirm that mental health problems are on the rise during COVID. Some employees are finding it difficult to get through their task list every day, finding their mental energy instead consumed with laundry, cooking, or just lying on the couch staring at the ceiling, contemplating the misery of life in a never-ending lockdown. And that’s not even including the additional stressors caused by childcare insecurity, the secondary stress faced by family members, economic insecurity, or the tragedies wreaked by COVID itself.
This post cannot address every facet of the pandemic’s impact on our lives and work lives. But it does explain how employment law can help those workers working from home for whom the pandemic is causing or exacerbating mental health challenges.
In California, workers are entitled to a “reasonable accommodation” of their disabilities under the Fair Employment and Housing Act (FEHA). If you’ve worked for an employer for a year (part time or more), you’re also entitled to at least 12 weeks of time off for a disability, a medical issue, or to care for someone in your family under the California Family Rights Act (CFRA). If the pandemic stress and isolation has caused you to either acquire for the first time clinically-significant symptoms of anxiety, depression, or another health condition — or has exacerbated an existing mental health condition like ADHD to the point that it impairs your ability to do your job — you have the right to ask your employer for a reasonable accommodation, which can include time off. This right to accommodation is available even if you haven’t been at the employer long enough to qualify for the automatic 12 weeks off. And your employer is required by law to find and implement an effective accommodation unless it’s an undue hardship for the employer. Here are our tips for the best ways to make this ask.
While it’s not required for you to get a doctor’s note first, it can’t hurt. If you can, talk to your doctor – or therapist, or other health care provider. The person need not have an M.D. or a Ph.D. A licensed therapist counts, as does a licensed social worker, a midwife, a nurse practitioner, a physician’s assistant, or an acupuncturist. Talk to someone who has treated you for mental health issues or with whom you’ve done therapy. If you haven’t started, start. There are free and low-cost options for teletherapy. Make an appointment and tell the provider how you’re feeling and the kinds of accommodations that you would need to function at (virtual) work. Do you just need time off? Do you need a reduced schedule? Do you need a daily check-in with your boss so that you don’t feel like you’re slipping into a black hole in which time and space have no meaning? Do you need a special app for ADD or meditation? Do you need a designated “break” time during the day to nap or exercise? Be creative. With your mental health professional, generate a list of things that could help you continue to do your job while maintaining (or recovering) your mental health. Then, ask your doctor, therapist, acupuncturist, or other provider to write a note for you. The note doesn’t need to say your diagnosis. It can say simply that you have a “disability” which is impacting your ability to work. As an accommodation, the letter can say that you are seeking ways to be able to continue to do your job, and the doctor/provider suggests the following ideas (and then list whatever you’ve come up with.)
Then, initiate a conversation with your boss or your HR department. Tell them you’d like to talk by phone or by virtual meeting, and in the conversation, say you are requesting an accommodation for a mental health issue, that you’re flexible and willing to consider any accommodation that works, but you have the following suggestions. Of course, if there’s one clear thing that you know would help, you should ask for that. While it’s certainly not prohibited to tell your company more about your diagnosis, you are absolutely not required to tell your boss your diagnosis or much at all about your disability. What you do need to be ready to talk with your company about are the accommodations you think could help and the ways that your disability limits or interferes with your ability to work.
Here’s the important part: the company has a duty to engage with you in what’s called the “interactive process.” They are supposed to engage in an individualized conversation with you to figure out what they and you can do that would enable you to keep doing your job, despite the mental health limitations you are facing. They do not have to just do what you’re asking for, but they have an obligation to suggest alternatives if what you’re seeking would be too expensive or burdensome for whatever reason. It’s supposed to be a give-and-take. The company may request you to put your request on a special form, or to ask your doctor or therapist to fill out a form. If it is not too burdensome for you, go ahead and do those things. If they don’t follow up with you quickly, follow up with them. Remind them of your requests (ideally in writing) until the requests are granted.
After your initial conversation with your boss or HR, we recommend following up in writing to make clear that you’re requesting an accommodation for a disability and are open to an interactive conversation with the employer to determine which accommodations will work. If you have one, attach your doctor’s note or therapist’s note.
If getting the accommodations you need doesn’t happen promptly or if your employer is not acting in good faith – like making you undergo a long and complicated process, or just denying your request without offering other alternatives – then that might be time to consult an employment lawyer for help navigating this process, so that you can get the accommodations you need. After all, you deserve to survive this pandemic with your job, and your mental health, still intact.
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.