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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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Democrats unveil plan for a $15 minimum wage

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Congressional Democrats have unveiled their strongest minimum wage plan yet. And while Republicans will block this, it’s important to get the word out: this is what we’d be moving toward if Democrats were making the laws.

Their legislation, dubbed the Raise the Wage Act, would gradually raise the federal minimum wage to $15 an hour, increasing it from its current level of $7.25 an hour to $9.20 an hour once it’s passed and then adding about a dollar a year for seven years until it gets to $15. It would rise automatically after that as the country’s median wages rose.

The bill would eventually do away with the separate tipped minimum wage, which currently allows those who earn tips as part of their compensation to be paid as little as $2.13 an hour by their employers. It would increase that rate to $3.15 and then gradually raise it so it would eventually reach $15 an hour.

Seven years is slow, but otherwise, this plan checks some important boxes—in particular, raising the tipped minimum wage and setting it so that the minimum wage rises automatically rather than requiring a fight each and every time it’s raised. If Democrats had done that the last time they raised the minimum wage, it wouldn’t still be stuck at $7.25 an hour nearly eight years after its last increase, years during which it’s lost nearly 10 percent of its purchasing power. The Raise the Wage Act would also ensure that people with disabilities are paid the full minimum wage.

Every single time you talk about lawmakers backing a $15 minimum wage, you have to remember that it’s low-wage workers who pushed $15 into the realm of possibility, organizing around a number nearly $5 higher than the high end of Democratic proposals at the time. Their organizing has changed the discussion—and in two states and several large cities, it’s helped change the law.

We need to change the Congress, though, before we’ll see nationwide progress.

This article originally appeared at DailyKOS.com on April 26, 2017. Reprinted with permission.

Laura Clawson is a Daily Kos contributing editor since December 2006. Labor editor since 2011.


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How States Are Trying to End the Disability Unemployment Crisis

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Data in the newly released 2016 Disability Statistics Compendium are highlighting a pernicious, and complex, disparity for the disability community: unemployment. In 2015, less than 35 percent of disabled Americans between 18-64 living in the community were employed, in contrast with some 76 percent of their non-disabled counterparts.

This is not just a disparity of disabled and non-disabled, though, but also one determined by state of residence. In Wyoming, for example, nearly 60 percent of disabled people are employed, while at the other end of the spectrum, in West Virginia, the disability employment rate is around 25 percent.

Understanding why employment outcomes for disabled people are so widely variable is important because such knowledge may contribute to a fresh approach to getting disabled people who are ready and willing to work into fulfilling jobs.

Officials from South Dakota Advocacy Services (SDAS), an agency charged with disability advocacy, shed some light on the subject. Their state has a disability employment rate of slightly more than 50 percent, an accomplishment they’re proud of. While the path to getting to that number takes work, officials argue, it’s achievable.

“South Dakota has a lot of things other states could look to,” says Tim Neyhart, executive director at SDAS.

Officials’ work starts at the high school level. As disabled students get closer to graduation, community agencies start working with them to prepare them for the workforce to ensure they don’t fall through the cracks as they move into adulthood.

Cole Uecker, also of SDAS, explains that the goal is “integrated competitive employment,” with disabled people entering the job market alongside their non-disabled peers, instead of being shunted to sheltered workshops. Under the sheltered workshop model, disabled people are segregated in facilities where they complete basic, repetitive tasks for low pay—often subminimum wage—and don’t achieve autonomy and independence.

Disabled students in South Dakota are paired with rehabilitation specialists who help them acquire job skills and learn about the programs and services available to them. To address the “benefits trap” that keeps disabled people unemployed because they fear losing services, the state offers Medical Assistance for Workers with Disabilities, a Medicaid buy-in program that allows them to retain benefits while working.

Elsewhere in the country, some areas use job programs like Project SEARCH, which originated at Cincinnati Children’s Hospital Medical Center in 1996 when a nurse—frustrated with high turnover among hospital support staff—got the idea of bringing in disabled people, providing them with vocational rehabilitation at the hospital and encouraging them to enter the workforce. The formalized program now has some 3,000 graduates per year, says Maryellen Daston, a program specialist, and a very high success rate, with participants in Project SEARCH finding employment after the program at a rate of 77 percent in 2015.

Neyhart and Daston echo each other when they talk about getting disabled people into the workforce. Both assume that disabled people are capable of work and want to be part of the community. Both prioritize integrated competitive employment and early intervention to identify needs before people leave school.

But lots of states have similar goals and programs, so why are some states having such radically better outcomes than others?

One answer lies in demographics. South Dakota, for example, is not a highly populous state, which makes the personalized, thoughtful intervention needed for successful employment programs functionally possible. Moreover, just 12.5 percent of the state’s residents identify as disabled in the American Community Survey. By comparison, nearly 20 percent of residents in West Virginia identify as disabled. Neyhart also acknowledges that South Dakota has a low unemployment rate overall.

States with higher disability unemployment rates often have a larger disabled population. They also tend to be more populous overall, in addition to more racially diverse. Administering effective support programs may be more challenging with heavier demands on state resources—especially in states struggling with poverty, like much of the South, where disability employment rates are low.

Programs that enable a smooth transition from school to the workplace have documented results, as does allowing people to enter the workplace while retaining critically important healthcare benefits. This may be a challenge of scale, which could be a good thing, because that means it’s a problem with the potential to be solved.

“In order to improve, you always have to be looking at areas in which the numbers aren’t as good,” notes Neyhart.

This blog originally appeared at inthesetimes.com on March 21, 2017. Reprinted with permission.

S.E. Smith is an essayist, journalist and activist is on social issues who has written for The Guardian, Bitch Magazine, AlterNet, Jezebel, Salon, the Sundance Channel blog, Longshot Magazine, Global Comment, Think Progress, xoJane, Truthout, Time, Nerve, VICE, The Week, and Reproductive Health Reality Check. Follow @sesmithwrites.


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What Slashing the Labor Department Budget by 21 Percent Would Mean

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The Trump administration’s “budget blueprint” would devastate worker safety, job training programs and legal services essential to low-income workers. Its cuts include a 21 percent, or $2.5 billion, reduction in the Department of Labor’s budget.

The budget would reduce funding for or eliminate programs that provide job training to low-income workers, unemployed seniors, disadvantaged youth and for state-based job training grants. It eliminates the Occupational Safety and Health Administration’s (OSHA) training grants as well as the independent Chemical Safety Board. Also targeted for elimination is the Legal Services Corporation, which provides legal assistance to low-income Americans.

“Cutting these programs is cutting the safety net for the most vulnerable workers, those striving for the middle class,” said Matt Shudtz, executive director at the Center for Progressive Reform. “This budget would eliminate training programs for them, the kind of things people need to move up in the world. It is very anti-worker and anti- the most vulnerable workers.”

Judy Conti, National Employment Law Project (NELP) federal advocacy coordinator, didn’t mince words.

“This budget will mean more illness, injury and death on the job,” she said Thursday, the day the proposed budget was released.

Targeting programs that prevent injury and illness

The White House budget proposal justifies its enormous cuts to the Department of Labor by saying it focuses on the agency’s “highest priority functions and disinvests in activities that are duplicative, unnecessary, unproven or ineffective.”

The budget would close Job Corps centers that serve “disadvantaged youth,” eliminate the Senior Community Service Employment Program, decrease federal funding for state and local job training grants—shifting more financial responsibility to employers and state and local governments. The budget would also eliminate certain grants to the Office of Disability Employment Policy, which helps people with disabilities stay in the job market.

Also slated for elimination are OSHA’s Susan Harwood training grants that have provided more than 2.1 million workers, especially underserved and low-literacy workers in high-hazard industries, with health and safety training since 1978. These trainings are designed to multiply their effects by “training trainers” so that both workers and employers learn how to prevent and respond to workplace hazards. They’ve trained healthcare workers on pandemic hazards, helped construction workers avoid devastating accidents, and workers in food processing and landscaping prevent ergonomic injuries. The program also helps workers for whom English is not their first language obtain essential safety training.

“The cuts to OSHA training grants will hurt workers and small employers,” said David Michaels, former assistant secretary of labor for OSHA. “Training is a proven, and in fact necessary method to prevent worker injuries and illnesses. OSHA’s training grants are very cost effective, reaching large numbers of workers and small employers who would otherwise not be trained in injury and illness prevention.”

“Everyone, labor and management, believes that a workforce educated in safety and health is essential to saving lives and preventing occupational disease. That is the purpose of the Harwood grants,” said Michael Wright, director of health, safety and environment at United Steelworkers.

The White House says eliminating these grants will save $11 million, a miniscule fraction of the $639 billion the Trump administration is requesting for the Department of Defense.

“No words to describe how cruel it is”

Eliminating the Chemical Safety Board (CSB) would mean no independent federal agency dedicated to investing devastating industrial accidents such as the Deepwater Horizon disaster, the West Fertilizer plant explosion, Freedom Industries chemical release in Charleston, West Virginia, and the Chevron refinery fire in Richmond, California. Those are among the hundreds of cases CSB has investigated over the past 20 years or so.

“Our recommendations have resulted in banned natural gas blows in Connecticut, an improved fire code in New York City, and increased public safety at oil and gas sites across the State of Mississippi. The CSB has been able to accomplish all of this with a small and limited budget. The American public are safer today as a result of the work of the dedicated and professional staff of the CSB,” said CSB chairperson Vanessa Allen Sutherland in a statement.

“The cost of even one such accident would be more than the CSB’s budget over its entire history. And that calculation is only economic. The human cost of a catastrophic accident would be enormous,” said Wright. “The CSB’s work has saved the lives of workers in chemical plants and oil refineries, residents who could be caught in a toxic cloud, even students in high school chemistry labs.”

The budget proposal also jeopardizes essential legal support for low-wage workers. While not dedicated to employment issues, the Legal Services Corporation provides vital services to low-wage workers, including on issues related to workers’ compensation and other job benefits.

“Gutting the Legal Services Corporation,” said NELP’s Conti, “there are no words to describe how cruel it is, especially considering grossly underfunded the agency is.”

“The government should be investing in workers, their families, and communities, but instead this budget drastically cuts the programs meant to uplift them,” said Emily Gardner, worker health and safety advocate at Public Citizen.

The White House calls the budget proposal a “Budget Blueprint to make American Great Again.” On a call with reporters, Mick Mulvaney, director of the Office of Management and Budget, “this is the ‘America First’ budget” and said it was written “using the president’s own words” to turn “those policies into numbers.”

“This is not so much a budget as an ideological statement,” said David Golston, government affairs director at the Natural Resources Defense Council.

This article originally appeared at Inthesetimes.com on February 17, 2017. Reprinted with permission.

Elizabeth Grossman is the author of Chasing Molecules: Poisonous Products, Human Health, and the Promise of Green Chemistry, High Tech Trash: Digital Devices, Hidden Toxics, and Human Health, and other books. Her work has appeared in a variety of publications including Scientific American, Yale e360, Environmental Health Perspectives, Mother Jones, Ensia, Time, Civil Eats, The Guardian, The Washington Post, Salon and The Nation.


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Department of Labor May Raise Wages for Disabled Federal Contractors, After All

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Mike ElkLast week, In These Times broke the news that Obama’s executive order raising the minimum wage to $10.10 an hour for federal contractors would not apply to the thousands of disabled workers who currently make subminimum wages—some as low as pennies an hour—under “14(c) programs.” Now, In These Times has learned that the Department of Labor is examining its position on this subject.

In a Tuesday morning interview on the Diane Rehm Show on Washington, D.C.’s WAMU, U.S. Secretary of Labor Thomas Perez referred to 14(c)—an exemption in the Fair Labor Standards Act that excludes workers with disabilities from minimum-wage protections if they are employed in certified training programs—as “a provision of law that really has worked to the detriment of people with disabilities.”

“[That is] one of the issues that we are examining right now as we prepare to finalize the executive order,” he continued.

Perez’s statement follows a letter issued by more than 25 civil rights, disability and labor organizations calling on the Obama administration to eliminate the use of subminimum wage for federal contractors. “All employees of federal contractors should mean all employees, regardless of disability status,” the letter read. “We believe … that it is both economically sound and morally just to ensure that people with disabilities have access to the same wage protections as those without.”

Some disability advocates maintain that jobs paying subminimum wages under 14(c)—known as “sheltered workshops”—must exist in order to give disabled people employment opportunities.

Others, however, argue that several states have phased out the use of sheltered workshops with few ill effects. In 2003, for example, Vermont eliminated such programs altogether. Instead, the state focused on providing training, support and transition services to people with disabilities and their employers. Today, 40 percent of Vermonters with disabilities are employed in “integrated employment” jobs, compared to less than 20 percent of workers with disabilities nationwide.

Advocates say that if the Obama administration were to eliminate 14(c) programs for federal contractors, state and local governments might follow a similar course. In the meantime, they say, they’re heartened by the unprecedented level of support they’re receiving from other organizations, including groups such as the American Civil Liberties Union.

“I think the real story here is how the civil rights community is weighing in … on the side of the disabled,” says Ari Ne’eman, president of the Autistic Self Advocacy Network. “This is creating new ground to engage the broader civil rights community on disability issues.”

“14(c) workers can and should do productive work,” says Susan Mizner of the ACLU. “They should be paid a living wage, just as every worker should be paid a living wage. This goes to principles of equity and fairness—issues that are at the core of the 14th Amendment and key to all civil rights movements.”

At the moment, it’s unclear what Obama’s next move will be in terms of raising minimum wage across the board. But Ne’eman reports that there are active conversations taking place between the federal administration and disability advocates.

“This is an issue of fundamental equity for disabled workers,” says Ne’eman. “In the coming weeks, we will be working to send a clear message to the administration that the time for action is now. Twenty-four years after the ADA, disabled workers deserve a fair deal.”

This article was originally printed on Working In These Times on February 6, 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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