Episode 96: COVID-19: Reasonable Accommodations

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Executive Vice President and General Counsel at the California Chamber of Commerce. Last week, Cal Chamber hosted our annual HR symposium. This time, of course, virtual. The event was packed with information and an impressive lineup of guests who shared their experiences and wisdom with all of our attendees over zoom and. And one of those presenters was our dearly beloved Jennifer Shah from the Shah Law Group, who's also here today because I wanted to bring her back on the podcast because there were so many wonderful questions that were generated on the topic she talked about. So, Jen, welcome again.

Thank you, Erica. I love being here and I had such a good time at this symposium. Thank you for having me.

Oh, my pleasure. And of course, thanks for making time to to come to the symposium and talk to all of our attendees. The topic, Jennifer, that you talked about was titled COVID 19 when does an Accommodation Pose a Direct Threat? That presentation really generated some wonderful real life questions. There was really some very helpful information that you passed along that I thought it would be good to share to our podcast listeners.

Well, well, I'm so glad everybody enjoyed it. You know, it's such an interesting topic because during COVID we've all had to quote accommodate schedules, people, vendors, processes, you name it. It's been all about accommodation. But the term reasonable accommodation actually has legal meaning. So one of the important things that I thought came up during that session by virtue of a couple of the questions, of course, was the idea that just because you make a change in a schedule or in somebody's duties, you don't want to call it an accommodation unless it is truly a medical accommodation. Because then you sort of create all of this precedent, you've got all sorts of potential legal issues there, rather than just saying, hey, you want a flexible schedule, we get it, this is what we can give you. But once you call it a reasonable accommodation, then you get in this universe of all right, well, did they have a disability? Is there a direct threat? And the direct threat issue is important because Covid itself is of course, a direct threat.

Jen, let's just take a step back for a moment. When can a accommodation be warranted in the legal sense under dfeh, eeo? What exactly is an accommodation in the legal sense?

Well, that's such a great question because of course it's only going to be applicable when the applicant, remember, this doesn't only apply to employees. The applicant or the employee has a disability as defined by law and as described by their health care provider. So this is always A medical issue, you only reasonably accommodate an individual who has a disability and who can perform the essential functions of their job with or without that accommodation. So, in other words, you're never accommodating the essential functions. You're always working on the margins. Right. And of course, as part of COVID Erica, we've learned that a lot of things we thought were essential are not. Does somebody really have to be in the workplace on site? Well, a lot of us would have said yes. Many, many jobs have been successfully performed away from the regular workplace in somebody's living room, in their kitchen, in their shed, behind their house. So it's been very interesting to look at that. But legally, it's only if the applicant or the employee has a disability and there is an accommodation that will help them perform the essential functions of their job.

And taking it one step further, when an employer is aware or learns that an employee may need a reasonable accommodation, what obligation is placed on the employer?

So it's always going to be the employer's obligation to start the process. So we had a great question during the symposium where somebody said, well, gosh, Jen, can't I just wait until somebody literally says I need a reasonable accommodation? And the answer is no. Remember, these are our favorite employees. If there's one thing that people can remember, if you have a favorite employee and you're paying attention to that employee, which you will be because they're your favorite, you're going to notice if they're having some problems, if it looks like they're having some difficulty doing their job, whether it's a physical difficulty or more challenging, of course, is a mental. So someone is really anxious. They're having ptsd, maybe they're bipolar. They haven't yet been diagnosed. There's such a stigma to these mental conditions, but in my opinion, they shouldn't be treated any differently than somebody who has heart disease. Of course, that's what the law requires, not just my opinion. Forget about all the biases and stereotypes we have, Right? It's no different.

It just is what it is. I remember when I got divorced a couple of years ago, I was having a very difficult time. And so I went to the doctor, and the doctor said, I'll put you on anxiety medicine. And I literally recoiled. I said, oh, my gosh. But really. And then, of course, she was beautiful. She said, jen, everybody needs help in these kinds of times. What is the problem? And now, I swear to you, I wear it as a badge of honor, like I was on anxiety medicine. It really helped me it was terrific.

And.

And it's no different than me saying I wore a knee brace when I ran too far and pull a ligament. Right. It's just. But a lot of times, I think in the workplace, we just miss that, that really important concept of no judgment. Right? It's got to be a judgment free zone, and it's really got to be something where if you think about the employee as being your favorite employee, you will not mess this up.

So I want to bottle up that discussion for just a second because it's good. We'll bring it back when we now start about, let's roll in or wrap up COVID 19 and bring it into the conversation now, because that's where we started from. Knowing that we have now laid the foundation, how does COVID 19 now factor into reasonable accommodation in the legal sense?

Well, it's been fascinating for me to watch, Erica, because as you know, this is one of our main areas of practice. We provide advice and counsel to employees and employers. And.

It'S been very interesting to watch how these issues are coming up. So the employer, of course, is the one who calls us, but I think of it as we're helping the employee because we're giving the employer the right advice. Right? So before COVID it was pretty straightforward. You know, what do you need a schedule change? Okay, you need some time off? Maybe you've got some sort of a condition that makes it hard for you to do one of your functions you don't do very often. Can we get rid of that function? But with COVID Covid itself has created a problem because people are sick, obviously, but people have anxiety about COVID So then we get this issue of, okay, well, how do I deal with my employees anxiety about COVID What if I say to you, erica, look, I don't want to come back to work. I know you want me to work in the office, but I'm really afraid of COVID I'm not sick. Nobody at my home is sick. I don't need to be seen by a doctor. I'm not waiting for a test result. I'm just anxious. What does that mean? Am I entitled to an accommodation? What if I don't want to wear a mask? We all know that masks have now become, for many of us, part of our wardrobe. Right? It's what we're supposed to be having on us anytime we're out in public. And yet there are employees who will say, understandably, I have asthma. I can't wear my mask all the time. Well, if I tell you you don't have to wear your mask. Am I now endangering the other people in the workplace? Because there are requirements, various requirements, of course, which confuse all of us from federal and state law and local law and ordinances. But the bottom line is we got to find a way to deal with it. COVID 19 has presented this situation where there are things we never thought of before that might be accommodated. Not wearing a mask, not wanting to come back to work, or the other side of it is I have trouble at home and I need to get out of my house. The incidents of domestic violence and child abuse have gone through the roof since sheltering in place. And it's understandable, right? It's stressful. I mean, obviously I'm not saying that this is acceptable. It's horrible, but it should have been predicted, right? Because it's so obvious that this kind of thing is going to happen. Well, some of those folks are going to want to come back to the workplace even when you think it's not safe for them to do so. Is that a reasonable accommodation? So Covid has raised a lot of interesting issues. We still do the same analysis. Does the person have a disability? Of course that's going to be based on medical documentation. What are they asking for? Is the request reasonable? And remember, I don't get to ask for a request to accommodate my schedule because my child isn't going to school. We have laws, the Families First Coronavirus Response Act, COVID 19, supplemental sick leave. We've got laws that deal with those issues. When we're talking about accommodation as a legal issue, we are only talking about the disability of the person involved. And disability is much more stringent than a serious health condition. For example, if you're just looking at it under the Family and Medical Leave act or the California Family Rights act, there are a ton of interesting issues here.

Let's just parse this out just a little bit more. I want to take you down another road here. Using the example of the employee who has asthma, and the employee says, I need an accommodation. I cannot wear this mask because I have asthma. Well, that in of itself, because there's an underlining health condition of asthma, would that trigger the interactive process, reasonable accommodation analysis from an employer?

Absolutely. Because the person is saying, I've got a medical condition, I've got a disability. It's called asthma. Or even it's called anxiety. I mean, we can take another fact. But with the asthma example, it is clear that asthma is a disability. Most of us who have asthma, and I do you Take medication. You have to be careful in the spring. You have to be careful in the fall. There are things that you need to watch out for today. I was taking a walk this morning, and a kitty cat came up, and he had a collar. He was obviously safe. He just wanted to rub all over me. I'm completely allergic to cats. So I was like, okay, I got to get out of the cats. So it's interesting, right here's a medical condition. So I say, I don't want to wear my mask at work. The problem is, the reason we're asked to wear a mask at work is because it's a safety precaution. So when you say you're not going to wear the mask. All right, we got a couple different options. Can I put that employee off, away from others, where they will not interact with others so that I can make sure that that employee is safe? So she doesn't wear the mask, but the coworkers are safe because they're not exposed to her not wearing her mask. Can I put her on a different floor? Can she telework? What is it that we actually need to be doing? The other thing to remember is, and I know we have a lot of folks who want to enforce the mask rule, but we're not required to wear masks when we're just sitting at our desk as long as there's six feet of distance. So some people have actually been using this mask idea as I need to telework permanently because I can't wear the mask. And in fact, you need medical documentation. We go through the interactive process, because then you find out, no, they basically just want to work at home. You can sit at your desk and not wear your mask. You're not required to wear your mask as long as you're six feet away and you're in a common workspace. Now, when you're in a elevator or a hallway, yeah, you got to wear your mask. But even an asthmatic could wear a mask for the 15 seconds it takes to get down to the bottom of, you know, from the 12th floor to the ground level in the elevator. So not only does the employer need to treat the employer, the applicant, like they're their favorite, but the employee and the applicant has to engage in good faith. If what you want is to telework, don't try to tie it to a mask. Just say, you know what? I've proven to you that I can telework. Let's talk about me teleworking. I want to telework. I don't want to commute. I want to be home with my kids. That's what I want to do. Transparency is so critical. Just say what you need, and as the employer, help the employee or the applicant really understand the value of just being straight up, just being straightforward.

And on that note, then let's then compare it to what may be a request, but not an accommodation in the legal sense to close things out. So employee comes and says, you know what? I'm just really not comfortable being at work. I don't have anxiety. I don't have a mental diagnosis or an illness that would trigger. I'm just not comfortable. Covid freaks me out. I stay at home. I really want to be home. What is the obligation on the employer there?

Well, the first thing you do, of course, is you clarify that it's not a disability. Right? We don't have a medical issue. Once you do that, I think the best thing to say to that employee is, look, this isn't a reasonable accommodation issue. Let's talk about what you want and let's see if we can make it happen. Then it becomes a morale issue. It doesn't become a legal issue. It's a retention issue. It's a recruitment issue. It's a morale issue. It's just being a good person and showing grace and trying to help somebody in a very difficult time. This virus has posed challenges to all of us.

It takes it immediately out of that legal realm.

Jennifer, as always, thank you so much. I really appreciate you describing and distinguishing between the accommodation and legal sense and being flexible and granting requests on the other, and really encouraging employers to be careful not to intertwine the two, but also be very cognizant of the obligations that they do have as employer, not only to accommodate employees with disabilities, but also we're faced with a lot of workplace requirements that we have to adhere by to. And oftentimes, like we're seeing right now, the two may not necessarily coexist together all the time.

That's right, Erica. And I just think employers have got to give themselves a break. This stuff is hard. It's tricky. Ask questions, call your counsel, call the helpline, do what you need to do to get the guidance you need. But the bottom line is this isn't easy. So if you have this expectation that this will be easy to figure out, just let that go.

Let it go. It'll be so much easier.

Don't be so hard on yourselves.

Well, thank you, Jennifer, again, as always. We really appreciate you coming on the podcast.

Well, thanks for having me, Erica. I love it.

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