Reasonable Work Accommodations in the Age of COVID
Extraordinary times and reasonable measures at New York workplaces
on October 29, 2020
Updated on June 3, 2022
Of the cases employment lawyer Randi M. Cohen has handled during the COVID-19 pandemic, there’s one that has particularly vexed her. Her client was a clinician working as a therapist at a facility for teens with mental disorders and eating disorders. The woman had underlying health conditions putting her at risk, plus a young child at home due to the pandemic, and her employer was reluctant to make a schedule change or adjustments to her work environment.
“They were not working with her in any regard to try to find a win-win,” says Cohen. “And she was beside herself.
“So her choice was to go to war, or to accept whatever pittance we were able to negotiate as a package. And in this instance, we got her a walk-away deal and she got on unemployment, and I don’t know today whether she has a new job or not, but she felt satisfied with that result. Me? I felt disheartened, because I felt like they got away with it.”
The Intended Interactive Process
Per a 2018 amendment to the New York City Human Rights Law, most employers must engage in a good faith “cooperative dialogue” when a worker has concerns about being able to do their job safely. During the pandemic, that dialogue can include concerns about preexisting conditions that could exacerbate the virus. “It might mean that the employee should work from home,” Cohen says. “It might mean that the employee only comes in when there’s a few people there, and they have their own dedicated space that is protected and cleaned frequently.”
One question employment and civil rights lawyer Gregory Antollino has discussed with other attorneys, journalists and some doctors: Who is responsible for providing personal protective equipment? “I think that the employer has the burden to bear,” he says, “because the employer is in a better position to pay for alternatives, and do what is necessary to protect their employees, as OSHA requires. The CDC has changed its guidelines—and is still changing its guidelines throughout this—but OSHA’s guidelines have remained the same throughout.”
Both attorneys suggest workers negotiate with employers before escalating to a lawsuit. “Hopefully they can reach a resolution on his or her own,” says Antollino, “because lawsuits are not a good way to settle internal employment issues. If that goes wrong, or if a person gets fired because that issue has broken the relationship, that’s another question. However, smarter employers are negotiating accommodations and time-off issues for essential workers.”
That goes for schedule adjustments for employees who are already working from home, too. “What I might say to an employer is, ‘Is there a way to make Sally’s job easier?’” Cohen says. “’You like Sally, and Sally is a good worker, but Sally’s in a difficult spot. She has to keep her 1-year-old safe. Can you maybe ask Sally when nap time is and schedule her calls around that? Can you allow Sally to start earlier and then maybe give you some time in the evening?’”
When An Accommodation Request Isn’t Met
Even so, sometimes a negotiation can go wrong. “I do have one client, an essential worker who was fired,” says Antollino, “even though he and members of his family had COVID. Insane, but true. But that’s not most employers. I don’t think most employers are so daft.”
Barring another local action like Gov. Cuomo’s executive order requiring New Yorkers to work remotely where possible, there exists no right to work from home—so it all comes down to what workers are able to negotiate with their employers.
“This is an extraordinary time,” adds Cohen. “There’s no reason in 2020 that, for the most part, we can’t do our emails and our telephone calls and our data entry from home, right?”