Teleworking is a win-win for workers and employers.

By Bryan A. Chapman, Esquire

Teleworking is a growing trend. Technology is making it possible. COVID-19 is a major catalyst. And, Big Tech is leading the way.

In response to COVID-19, in early March 2020, major tech firms, such as, Twitter, Facebook, Microsoft, Amazon and Google, were the first to allow their West Coast workers to work from home. Other employers, both private and public, followed the example of the major tech firms. Teleworking may have slowed the spread of COVID-19 in California’s Bay Area.

Despite pressure to reopen the economy, major tech firms have embraced teleworking for the time being. Social distancing and the health of their employees are major concern.

Mark Zuckerberg said half of Facebook’s 45,000 workers could be teleworking in the next 5 to 10 years. Twitter will allow its workers to permanently work from home. The tech industry’s acceptance of teleworking is likely to have a ripple effect in other industries.

Working from home will particularly benefit workers who have disabilities that could be exacerbated by COVID-19 exposure at the workplace. Older workers with underlying health conditions, such as, hypertension, diabetes, heart disease, etc., are especially vulnerable to COVID-19. For this group, a COVID-19 infection can be fatal.

Under the Americans with Disability Act (ADA), disabled workers can request a reasonable accommodation and employers may be obligated to provide a reasonable accommodation, provided it does not cause an undue hardship. Teleworking is the ideal reasonable accommodation for many disabled workers.

Economically, employers who adopt teleworking could reduce their office related expenses. Meanwhile, workers who telecommute could eliminate the hassle and expense of traveling to work on a daily basis.

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COVID-19: Employment Discrimination

By Bryan A. Chapman, Esquire

In the spring of 2020, COVID-19 caused massive disruption in the United States. Within a few months, millions of workers became unemployed due to COVID-19 related layoffs. According to the U.S. Labor Department figures, in April 2020, the number of unemployment workers exceeded those of the Great Depression, and Hispanics and African Americans workers were especially impacted. COVID-19 related layoffs disproportionately affected older and disabled workers.

According to AARP, when the overall U.S. unemployment rate spiked from 4.4% in March to 14.7% in April, the unemployment rate for women 55 and older rose even more: from 3.3% to 15.5%. The unemployment rate for men 55+ also soared, though a little bit less, from 3.4% to 12.1%.

Some employers see COVID-19 related layoffs as an opportunity to eliminate older workers. To these employers, older workers represent higher salaries and higher expenses due to insurance costs and paid time off due to illness. Some employers may have a similar attitude about disabled workers.

According to a May 2020 Bureau of Labor Statistics (BLS) Jobs Report, the number of working-age people with disabilities who were employed decreased by 950,000 between March and April (from 4,772,000 to 3,827,000), a 20 percent reduction.

Nonetheless, federal workplace anti-discrimination laws still apply. A worker can not be discrimination against and/or harassed based on their race, sex, national origin, religion, age, or disability.

The U.S. Equal Employment Opportunity Commission (EEOC) specifically warned employers about discriminatory layoffs. According to the EEOC, an employer should “review the process to determine if it will result in the disproportionate dismissal of older employees, employees with disabilities or any other group protected by federal employment discrimination laws”.

COVID-19 layoff can facilitate sexual harassment. Supervisors can use the threat of a COVID-19 related layoff to force subordinates to submit to unwanted sexual advances.

The earliest cases of COVID-19 occurred in China. As a result, Asian and Asian American workers have become targets for workplace discrimination/harassment.

Discrimination

Employers can deliberately use COVID-19 as a pretext to discriminate against and/or harass workers based on their race, sex, national origin, religion, age, or disability. Here are examples of illegal workplace discrimination:

1. you are laid off, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

2. you are denied a promotion or increase in pay, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

3. you are demotion or given a reduction in pay, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

4. you are given an undesirable assignment or shift, while workers of a different race, sex, national origin, religion, age, or without a disability are not; and,

5. you are being verbally or physically harassed, while workers of a different race, sex, national origin, religion, age, or without a disability are not.

Retaliation

Federal workplace anti-discrimination laws also prohibit retaliation. Retaliation occurs when a worker is mistreated because they complained about discrimination. Here are examples of retaliation:

  1. undesirable transfers

2. unwarranted disciplinary action

3. harassment

4. refusal of deserved promotion or pay increase

5. demotion or pay reduction

6. termination of employment

Retaliation occurs when an employer takes an adverse action against a worker that is designed to stop a worker from complaining about discrimination/harassment. The adverse action should occur shortly after the worker complains.

Consult an attorney

If you are a victim of discrimination or retaliation, consult an experienced civil rights attorney.

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COVID-19: The ADA and Workers with Mental Disabilities.

By Bryan A. Chapman, Esquire

America is reopening as states and cities are lifting stay at home orders. Most people are eager to get back to work, but there is stress and anxiety over increased COVID-19 exposure. COVID-19 is causing a global mental health crisis.

Some workers suffer from a mental disability that will be exacerbated by returning to work during the COVID-19 pandemic. Under the Americans with Disability Act (ADA), workers with a mental disability may qualify for a reasonable accommodation.

The ADA applies to non-federal government workers who have a qualifying mental disability. Under the ADA, workers with a mental disability have the right to request a reasonable accommodation from their employer. The employer is legally obligated to provide a reasonable accommodation provided doing so does not cause an undue hardship for the employer. For instance, a worker whose mental disability is exacerbated by COVID-19 exposure at work might request telework as a reasonable accommodation. If telework is not an option, the employer may provide other reasonable accommodations, such as:

  1. temporary job restructuring of marginal job duties
  2. temporary transfers to a different position
  3. modifying a work schedule or shift assignments
  4. temporary changes to workload
  5. longer time to complete tasks
  6. flexible hours, later start time, more flexibility concerning attendance
  7. personal leave

Under the ADA, mental illness and disorders, such as, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder are mental disabilities that could qualify for a reasonable accommodation.

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Reasonable Accommodation Process

Source: D.C. Government’s Office of Disability Rights

Request Process – Employee Requests an Accommodation

Employees or applicants with disabilities may request reasonable accommodations of the employer, regardless of title, salary, grade, bargaining unit, employment status (permanent, temporary, provisional, emergency) or civil service status (regular, exempt). This request does not have to be in writing, be formal or use any special language. An individual may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation.”

Here are some examples from the Job Accommodation Network:

Example A: An employee tells her supervisor, “I’m having trouble getting to work at my scheduled starting time because of medical treatments I’m undergoing.” This is a request for a reasonable accommodation

Example B: An employee tells his supervisor, “I need six weeks off to get treatment for a back problem.” This is a request for a reasonable accommodation.

Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for a reasonable accommodation.

Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. He does not link his need for the new chair with a medical condition.

A request for accommodation also may be made by a family member, health professional, or other representative who is acting on the individual’s behalf with the individual’s consent.

The employee usually initiates the reasonable accommodation process by inquiring about the process from a supervisor, Human Resources representative, EEO Counselor, or the ADA Coordinator at the agency. If the supervisor is contacted first, the ADA Coordinator should be brought in early in the process.

If an employee with a known or obvious disability is having performance problems, a supervisor may suggest an accommodation, but only after making a preliminary determination that the performance problem is related to the employee’s disability. This is an exception to the general rule against inquiring about disabilities, and extends only to those with known or obvious disabilities.

The reasonable accommodation does not have to be requested at the beginning of employment. However, a reasonable accommodation request will not cancel out any prior disciplinary actions.

Interactive Process

The ADA requires that the employer engage in an interactive dialogue with the individual with a disability concerning reasonable accommodations. It is best to take a methodical approach in addressing requests for reasonable accommodation from employees.

Immediately upon receiving the reasonable accommodation request, the agency ADA Coordinator/EEO Counselor should schedule a meeting with the employee as soon as possible. The employee’s collective bargaining agent or other person(s) of his/her choosing may assist the employee during this meeting.

The agency’s ADA Coordinator should conduct an informal, interactive discussion with the employee. The discussion should include the following steps:

  1. A review of the agency’s detailed, written job description/vacancy announcement delineating the “essential functions” of the position from the “marginal functions.”
  2. A determination of how the employee’s impairment/disability limits his/her ability to perform the essential functions of his/her job in order to identify the employee as a qualified individual with a disability.
  3. An identification of potential accommodations and assessment of the effectiveness of such accommodations on the employee’s job performance.
  4. Identification of the type of accommodation needed. The Job Accommodation Network can be contacted for assistance in making this assessment at 1 (800) 232-9675 (Voice/TTY) or http://janweb.icdi.wvu.edu.
  5. Consideration of the preference of the employee; however, the agency has the right to select among the alternatives available, as long as they are effective.
  6. Selection and implementation of the effective reasonable accommodation by the agency as expeditiously as possible. Keep the dialogue open with the employee and discuss time lines for obtaining the accommodation and follow up with the employee on unexpected delays.

The agency may find it difficult to accommodate the disability because it is not well understood or because neither the employee nor the ADA Coordinator know what equipment, modification or accommodation will enable the employee to perform the essential functions of the job. The agency ADA Coordinator should consult the Office of Disability Rights (ODR) for additional reference material and service organizations that may help in identifying appropriate accommodations.

Medical Documentation and Confidentiality

If the disability is not obvious, and there is no other medical information already on record for the employee, the agency can require the employee to submit documentation from a physician or other medical professional concerning the existence and extent of the disability. Before consulting with the physician, it is necessary to obtain the individual’s written consent for the release of medical information to the agency.

The employee’s medical information must be maintained in a confidential file separate from the employee’s personnel file or other records and must not be revealed to anyone who does not need to know in order to provide the accommodation. In some instances, the employee’s supervisor does not need to know about the person’s disability or accommodations. In those situations, the information should not be shared with the supervisor.

Information about the employee’s disability or accommodations should not be revealed to co-workers, customers, or members of the public.

ADA Determination

After the initial meeting and review of medical documentation (if submitted by the employee’s healthcare professional), the agency will make a determination whether the employee is a qualified individual with a disability and develop a Reasonable Accommodation Plan for the employee.

Reasonable Accommodation Plan

The Reasonable Accommodation Plan will:

  1. State whether the employee is a “qualified individual with a disability” as defined by the ADA;
  2. Outline the employee’s essential job functions needing accommodation;
  3. Recommend types of accommodation; consideration will be given to the preference of the employee, however, the agency has the right to select among the alternatives available; and
  4. Determine whether any accommodation causes an undue hardship or poses a direct threat.



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D.C. Sees Latest Test Case for Employees Seeking “Reasonable Accommodation” for Off-Duty Medical Marijuana Use

The American Civil Liberties Union (ACLU) filed suit last week in the D.C. Superior Court on behalf of Doretha Barber, a sanitation worker with the D.C. Department of Public Works, who claims that she was denied reasonable accommodation and placed on an indefinite leave of absence after disclosing that she is a medical marijuana card-holder under the District’s medical marijuana program.  Specifically, Ms. Barber alleges that she suffers from degenerative disc disease which causes her debilitating back pain and for which she was recently prescribed medical marijuana for off-duty use only.  When Ms. Barber requested a temporary transfer to a clerical position during the fall leaf raking season as an accommodation of her disability, she was purportedly denied the transfer, and after she disclosed that she possessed a medical marijuana card, she was allegedly placed on an unpaid leave of absence and told that she could not resume her duties as a sanitation worker until she successfully passed a drug test (which she would inevitably fail due to her medical marijuana use) because she was working in a “safety sensitive position.”

The District’s actions appear to be in response to a new D.C. law providing employment protections to D.C. government employees who are lawfully enrolled in a medical marijuana program.  This new law, which is pending Congressional approval but is expected to take effect October 31, 2019, would prohibit the D.C. government from taking any type of adverse employment action against individuals participating in a medical marijuana program, unless they were working in a “safety sensitive position.”  Barber has argued that the D.C. Public Works recently characterized all sanitation workers as “safety sensitive” positions, notwithstanding the fact that she does not operate a vehicle or operate any heavy machinery.

Unlike other employees who have unsuccessfully attempted to seek federal employment protection under the Americas with Disabilities Act (ADA) due to the fact that marijuana remains an “illegal drug” under the Controlled Substance Act (CSA) and the ADA, Ms. Barbar becomes the latest in a recent trend of employees seeking to utilize state or local anti-discrimination laws as a means of requiring their employers to provide “reasonable accommodation” of their off-duty medical marijuana use.

As many of our Blunt Truth readers may recall, a New Jersey Court of Appeals recently revived a funeral director’s medical marijuana disability discrimination suit in Wild v. Carriage Funeral Holdings.  In that case, which is set to be heard by the New Jersey Supreme Court this fall, the court held that while New Jersey’s Compassionate Use Medical Marijuana Act does not require accommodation of medical marijuana use, New Jersey’s Law Against Discrimination might require an employer to provide reasonable accommodation and overturned the lower court’s dismissal.

The ACLU seemingly seeks to extend this case law to D.C. with this new lawsuit in an attempt to seek new employment protections for medical marijuana users – particularly for those in the private sector in D.C. where employers are currently not prohibited from taking employment action against those using marijuana for medical reasons consistent with D.C. law.  While it remains to be seen how this new lawsuit will be resolved in the courts, it serves as yet another cautionary tale for employers who maintain blanket policies prohibiting any type of off-duty marijuana use or who otherwise implement “zero tolerance” drug testing policies.