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FAQ: COVID-19 and Navigating the Workplace with a Disability

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Many individuals with medical conditions managed through medication and/or lifestyle adjustments are finding themselves particularly vulnerable during the Covid-19 pandemic—especially when it comes to their employment. Some of these individuals may not previously have requested a reasonable accommodation for a heart or lung condition because they work in an office environment with sedentary duties.

This FAQ is intended to help employees navigate their options, from the basics to the nuances during this pandemic.

Q. My employer is making me come to work but I have a disability that makes me more likely to get really sick if I become infected with COVID-19. What can I do?

A. A “disability” under the Americans with Disabilities Act, is a medical condition that substantially limits one or more major life activities, such as standing, breathing, walking, etc. You can request a reasonable accommodation to help minimize your risk of catching COVID-19 in the workplace and/or during your commute.

Q. My employer says I am entitled to a reasonable accommodation once I get sick but not to help protect me from getting sick. Is that right?

Q. No. Employees with a disability that makes them more likely to become severely ill if they become infected with COVID-19 are entitled to a reasonable accommodation to minimize the risk of infection.

Q. What is a reasonable accommodation?

A. A reasonable accommodation is:

  • a workplace adjustment (which may also relate to an employee’s commute);
  • for a qualified employee with a disability (i.e., an employee who possesses the skills or qualifications necessary to perform the duties of the position);
  • which assists the employee in performing the essential functions of their position;
  • and which is not an undue hardship on the employer (an undue hardship is a modification whose cost or other requirements would pose a severe financial or organizational burden).

Q. How do I request a reasonable accommodation?

A. Requesting a reasonable accommodation is easy.

First, depending on the size of your organization, there may be a specific person designated to receive and process these requests. If you aren’t sure, ask Human Resources. If there is not a designated person, ask the person in your chain of command you feel most comfortable with. The request may be as simple as “I have a condition which makes me more likely to become severely ill if I catch COVID-19. I am requesting a reasonable accommodation.”

Then, suggest the reasonable accommodation you and/or your doctor thinks would be most effective. Be prepared, however, for your employer to suggest an alternative and to discuss that alternative in good faith. Importantly, you are not entitled to the accommodation of your choice; you are only entitled to an effective accommodation, even if it is the accommodation proposed by your employer. If you or your doctor does not believe the alternative accommodation proposed by your employer would be effective, you and your employer can negotiate for one that is mutually acceptable.

Finally, also be prepared that approval may not be automatic: your employer may need time to verify your disability and your need for the particular accommodation you requested, you may need time to get appropriate medical documentation, and your employer may need more time than normal to obtain any appropriate equipment. Both you and your employer are required to engage in an interactive dialogue in good faith—during this pandemic, this includes extra flexibility and patience from everyone. During this time, you should ask for an interim reasonable accommodation, a temporary accommodation that may be the same or different than the accommodation initially requested and may include the use of leave if there are no other alternatives.

Q. What kind of reasonable accommodations may I request?

A. Which accommodation is most appropriate will depend upon the individual’s disability and job duties. To determine which accommodation(s) would be most effective for you, provide your physician with a copy of your position description and discuss your request and any alternative(s) proposed by your employer. Common requests during this time include personal protective equipment (PPE), teleworking, and the use of leave.

Q. Is my employer required to grant my request?

A. It depends. An employer is required to approve a request for a reasonable accommodation which assists the employee in performing the essential functions of their position unless the accommodation would be an undue hardship. What may constitute an undue hardship is fact-specific and the current pandemic may have an effect. If an employer denies a request as an undue hardship, the employer should explain the basis for its decision and offer alternative accommodations, where possible. If an employee is facing denial of a request for a reasonable accommodation, they should speak with an attorney about the specific facts.

Q. I have a disability but I have not requested a reasonable accommodation and do not want one. My employer is requiring that all employees with any disability stay home and use their leave. Can they do that?

A. No. An employer may not exclude an employee from the workplace because of the employee’s disability unless it has a reasonable belief, based on objective evidence, that the employee’s disability makes the employee a threat in the workplace. An employer also may not exclude an employee from the workplace because the employee has a record of a disability or because the employer perceives the employee to have a disability.

Q. My employer says that I either have to come to work or stay home without pay, even though I have sick and vacation time available. Can they do that?

A. No. Although absence from work is a less common accommodation, and the courts differ on the circumstances under which this is appropriate, if an employer is offering or requiring absence from the workplace due to an employee’s disability, the employer cannot forbid the employee from using available leave during that time.

Q. I have requested a reasonable accommodation, but my employer is requesting medical documentation. Can they do that?

A. It depends. If an employer already has knowledge of the disability and the ways in which the disability limits the employee, the employer may not request the employee produce additional documentation.

Q. My employer is requesting medical documentation before approving my request for a reasonable accommodation, but I am having a hard time getting a medical appointment due to COVID-19 restrictions. What should I do?

A. Even where the employer may request documentation, the EEOC advises employers to be flexible during this time and suggests accepting alternative forms of verification such as prescriptions or health insurance records. Identify what alternative confirmation you may have available and talk to your employer’s disability coordinator.

Q. My employer is allowing me to telework due to COVID-19, but I have accommodations in the workplace that I do not have at home. Are they required to provide the same accommodations while I telework?

A. Employees are entitled to reasonable accommodations even when teleworking; however, there are unique factors that come into play. For example, if an employee already owns equipment at home, the employer may not be required to purchase a duplicate for home use. As another example, if the employee is only teleworking because of the pandemic, the relatively short duration of the telework arrangement will factor into an employer’s undue hardship analysis in terms of cost. Finally, as with any request for an accommodation during this time, supply shortages and delivery delays caused by the pandemic may impact the request.

Printed with permission.

About the Author: Elisabeth Baker-Pham is an Associate at Kalijarvi, Chuzi, Newman & Fitch. She represents employees and labor unions nationwide, advocating on their behalf in matters relating to claims of discrimination, harassment, and retaliation, wage and hour violations, whistleblower protections, and collective bargaining violations.

Before moving to D.C., Lisa was the Acting Director of the Office of Labor Relations for a state agency, where she previously served as labor and employment counsel. She provided daily guidance regarding a wide range of labor and employment matters with a focus on proactive compliance and appeared in administrative fora in matters relating to claims of discrimination and the state’s civil service laws. Lisa began her career as an intern with the same agency while focusing her law school studies on the areas of labor and employment law.

Lisa received her education at the University of North Florida (B.A. in Sociology and Political Science) and New England School of Law (J.D.). In law school, Lisa served as the Managing Editor of the New England Journal on Criminal and Civil Confinement.


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Tips for Improving Workplace Culture for Colleagues with Disabilities

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Charlie Graham Headshot ColorDisabilities come in all forms and most employees don’t realize that many of their colleagues have a condition that qualifies them as disabled in some way. Organizations can create a positive work environment and culture that brings out the best in their fellow team members with or without disabilities by creating a work atmosphere that fosters creativity, cooperation, trust and respect. Especially a respect and acknowledgement for what people can accomplish for the good of the team.

As with anything that differs from what might be regarded as “normal”, employees do not typically want to disclose a disabling condition for fear they might be judged or not presented with the same opportunities as their co-workers. Therefore, their condition may remain invisible. A secret, if they can.

But first, let’s get to the fundamentals, especially the language we use and the thinking that goes with it. People, who have a disabling condition, have a condition. They are not the condition. For example, many people regard a person with blindness as a blind person. But blindness, like many other conditions, is a matter of degrees. Even a person with complete sight loss, might still have sufficiently acute perceptions to be able to navigate freely in public places. So we would say that they HAVE a visual impairment – not that they are a blind person. Deafness too is a gradient scale, but of hearing. Additionally, we would certainly never say a person who has cancer is cancerous any more than we should say a person with diabetes is a diabetic.

And watch what you say. “Blind as a bat” is an old colloquialism which was never really true – bats “see” using a means other than their eyes to swoop in on mosquitos in full flight. And “deaf and dumb” likewise was never really true – deafness has nothing to do with a person’s intelligence. A good friend of mine is nearing completion of her PhD in Biology, yet she has severe hearing loss at times.

Organizations can ensure that employees with disabilities feel comfortable disclosing their disability and coming to work each day by removing the barriers of judgment, stereotypes and mistrust that may exist. A tense environment can impact a team member’s involvement in daily tasks or their loyalty to the organization, eventually resulting in decreased productivity. Creating an inclusive and trusting culture opens up opportunities for collaboration and creates a sense of mutual respect among co-workers.

Here are a few tips to help you ensure you’re treating your colleagues with the upmost respect and creating an ideal workplace for employees with disabilities.

Communication

  • While it’s a no brainer, communicating with your team is important in all aspects of the workplace, but it’s also important how you go about it. For example, if you see a coworker with a hearing aid, don’t start yelling at them. Raising your voice introduces emotions that you may not intend and they will most certainly feel those emotions emanating from you. Speak as you normally would until asked by that person for clarification.
  • Employees working with someone who is visually impaired should treat them like any other person they might encounter and be willing to help, if asked.
  • Co-workers might have a myriad of other conditions that you know nothing about and for which you are completely unprepared. Your inquiry about such a condition should be limited to the kinds of questions you might ask if a person had a big wart on the end of their nose – leave it alone, don’t draw attention to it. It’s embarrassing to them to have it, so if the wart isn’t affecting their work, then let it be.

Physical Considerations

  • If working with someone who uses a wheelchair, make no assumptions. There are many conditions for which the use of a wheelchair is elective. The old phrase “wheelchair bound” is often no longer applicable. A person with a broken leg often uses a wheelchair for a few days or weeks, but is certainly not “wheelchair bound,” as is the case for someone with new prosthetics. And when communicating with them, follow common courtesies – get eye level – pull up a chair.
  • At certain times, a colleague with a disability may need assistance in performing physical tasks or something job-related. Again, assume nothing. But if asked for help, be ready to lend a hand. Without judgment, inquiry, or asking for reasons. Do it, lift the box and move on.
  • People who have a disabling condition often have devices or even animals to aid them in bringing the universe around them into equilibrium with their limitations. These items are an extension of the person themselves – much like an arm or a leg. Leave it alone. And if it’s an animal, let the animal do its job without interruption. Respect is key.

Attitude:

  • Don’t be surprised to learn that many of the people I describe here are as determined to succeed as you are, or perhaps more so. Many have acquired their condition as an adult, so they have known success – in school, in society, in careers. And many are so determined that they are resolved to not let a little “condition” get in the way of reaching their goals.

Having a disabling condition changes your perspective on life, sometimes in an instant. Every single person on Earth is literally one nanosecond from acquiring a disabling condition – be it from an accident, or a genetic anomaly. But for many, does not change your ability to perform quality work.   Peak Performers has been successfully employing people with disabilities for more than 20 years for the State of Texas and we’ve seen our employees excel in many challenging environments. First and foremost it has been our absence of judgment – an extension of trust and confidence that has enabled our entire team to flourish. Limitations are an inherent part of this universe, but as humans, we have the power to overcome – even people with “conditions.”

 

About the Author: The author’s name is Charlie Graham. Charlie Graham is the founder and CEO of Peak Performers, a nonprofit staffing agency headquartered in Austin, Texas. Over the last 20 years, Charlie has led Peak Performers to employ and transition thousands of people who have disabilities into family wage jobs in and around Central Texas, increasing opportunities for individual professional growth and economic prosperity. To learn more about Peak Performers, visit: www.peakperformers.org.


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Obama’s Wage Hike For Federal Contractors Won’t Apply to Disabled Workers

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Mike ElkIn his State of the Union address on Tuesday, President Obama announced that he would issue an executive order raising the minimum wage to $10.10 for workers employed on federal contracts. The order has yet to be issued, so it’s unclear exactly how many and what type of workers will be covered. However, one group is already slated for exclusion: workers in a special government contracting program for people with disabilities.

Ari Ne’eman, president of the Autistic Self Advocacy Network, says that disability advocates were informed on a conference call Wednesday with Vice President Joe Biden and Secretary of Labor Thomas Perez that Obama’s executive order will not apply to federal contractors that use “14(c) programs”—in which workers with disabilities are paid subminimum wages.

Under the 14(c) exemption in the Fair Labor Standards Act, workers with disabilities are excluded from minimum-wage protections if they are employed in certified training programs. Though there is no official government data on the size of these programs, the National Council on Disabilities estimates that the federal government employs thousands of workers under 14(c). Nationwide, approximately 420,000 disabled Americans are employed in 14(c) programs coordinated through federal, state and local governments, and legally paid below the minimum, with some only making pennies per hour.

As Working In These Times reported last March, deep divisions remain within the disability community and even among top Congressional Democrats over whether disabled workers employed in 14(c) programs should be paid below the minimum wage. Some disability advocates—led by ACCSES, which represents employers of disabled workers under the 14(c) programs—claim that these programs provide valuable training to help transition people with disabilities into jobs, and that a minimum wage requirement would make that mission impossible.

Other advocates, however, say that the programs don’t provide meaningful training and rarely lead to outside jobs.  A 2001 study by the federal General Accountability Office (GAO) found that only 5 percent of workers employed in 14(c)-sheltered workplace programs left to take regular “integrated employment” jobs. These critics say the programs contribute to the well-documented cycle of poverty for those with disabilities: According to the Bureau of Labor Statistics, a person with a disability is three times as likely to live in poverty as a person without a disability.

On Thursday, the National Council on Disability (NCD), an independent federal advisory board, issued a statement on Thursday afternoon blasting the Obama administration’s decision to exempt workers with disabilities from the minimum-wage increase.

According to the National Council on Disability’s statement, “NCD believes that the Section 14(c) program is a policy relic from the 1930s, when discrimination was inevitable because service systems were based on a charity model, rather than empowerment and self-determination, and when societal low expectations for people with disabilities colored policymaking … If the administration agrees with this principle and wants to stamp out income inequality for all Americans, including Americans with disabilities, we urge you to reconsider what was shared on yesterday’s White House conference call and explicitly state in the Executive Order that the increase in the minimum wage for employees of federal contractors applies to all employees of federal contractors, including thousands of Americans with disabilities who are currently being paid less than minimum wage under the Section 14(c) program.”

The White House did not respond to a request for comment. According to Ne’eman of the Autistic Self Advocacy Network, officials told him on Wednesday’s conference that the Obama administration believes it doesn’t have the authority to raise the wages of 14(c) workers.

The Autistic Self Advocacy Network disputes this claim. In a legal memo put out Thursday, it concludes that “payment of subminimum wages to contract and sub-contract workers with disabilities is not required by statute [but] is left to the direction of the Department of Labor…As a result, to the extent that the president enjoys the authority to direct executive agencies to set a minimum wage for workers on all federal contracts, he may also direct those agencies to eliminate subminimum wage payment of contract workers with disabilities.”

To Ne’eman, the administration’s decision makes no sense. “We think they [have the authority] and hope our analysis will convince them,” he wrote in an email to Working In These Times. “If the administration has the power to raise the wages of workers without disabilities employed by government contractors, they have the power to do the same for workers with disabilities. There is no statute requiring government contractors to pay less than minimum wage to workers with disabilities.”

This article was originally printed in Working In These Times on January 30, 2014.  Reprinted with permission.

About the Author: Mike Elk is an In These Times Staff Writer and a regular contributor to the labor blog Working In These Times.


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