As vaccinations spread and California starts to re-open, we expect to see a rise of litigation relating employers illegally requiring their employees to choose between their health and the jobs. For instance, last week, a woman sued her previous employer for terminating her after she sought accommodations to protect herself from the virus as a person at heightened risk of complications from Covid-19. This woman is but one of countless employees across America who were terminated for refusing to return to work before vaccines were readily available and safety conditions improved.
Your Employer May be Required to Accommodate Covid-19 Related Health Conditions
The Federal Americans with Disabilities Act has protected workers with disabilities for over 20 years, and California Fair Employment and Housing Act provides even more robust protections for disabled workers. Both of these statutes require that an employer provide “reasonable accommodations” to employees with known or perceived physical disabilities. This includes accommodations you need during the COVID-19 pandemic to help you stay safe, healthy and be able to work—especially where you remain at increased risk of Covid-19 due to any co-morbidities or underlying health conditions.
“Reasonable accommodation” means that employers have an affirmative duty to accommodate disabled workers. “Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation . . . to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations.” “Reasonable accommodations” may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, providing personal protective equipment, allowing remote work, or providing a leave of absence.
These accommodations, and others not listed here, must be provided unless the employer can show that the required accommodation would constitute an “undue hardship” on the employer. However, employers will have a particularly hard time refusing remote work arrangements of limited duration on account of the “hardship” standard given that nearly all employers have been fully remote for the last year.
Employers Are Also Forbidden from Retaliating Against You for Making a Request for Accommodation
Not only does your employer need to provide a reasonable accommodation, but your employer is prohibited from retaliating against you for requesting an accommodation or for being temporarily disabled, which includes being diagnosed with Covid-19. If your employer terminates your employment rather than work with you to identify accommodations, that is illegal. It is also illegal for terminate, demote, or discriminate against employees in any way because they had or have Covid-19, such as firing an employee while you’re actively ill or even just recovering.
Can Your Employer Require You to Get Vaccinated?
Per guidance issued by the Federal Equal Employment Opportunities Commission (the EEOC), your employer can require proof of Covid-19 vaccination before requiring you to return to work physically provided certain conditions are met, including that failure to obtain a vaccination would create “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Of course, even if this standard was met—and it is a stringent standard—your employer would still be required to accommodate you by providing remote work unless it was relieved of that obligation under FEHA or the ADA.
If your employer does require you to get vaccinated, your employer probably has to pay you for the time you spend getting vaccinated. The California Department of Industrial Relations (DIR) updated its COVID-19 guidance to specify that, if an employer requires employees to obtain a COVID-19 test or vaccination, the employer must pay “for the time it takes for testing or vaccination because such time would constitute ‘hours worked.’”
Your employer also must pay for the cost of the vaccination, if any, under Labor Code Section 2802, which requires your employer to reimburse you for necessary business expenses. You also are entitled to reimbursement for traveling to the vaccination site, "[i]f the testing or vaccination is performed at a location other than the employee’s ordinary worksite.” The DIR recommends that employees “ask which location(s) or vendor(s) are acceptable to the employer to avoid disputes over cost.”
Talk to an Experienced Employment Attorney
The Covid-19 pandemic was a public health emergency and we all have family or friends who have suffered through Covid-19 or a related health condition—you should not also have to suffer a loss of your job because your employer won’t take steps to keep you safe. If you have experienced Covid-19 related disability discrimination at your job, do not hesitate to contact us today through our website or give us a call at (213) 214-3757 to schedule a free consultation!