What Are Reasonable Work Accommodations in a Public Health Emergency?

Of the cases employment lawyer Randi M. Cohen handled during the COVID-19 pandemic, one particularly vexed her. Her client was a clinician working as a therapist at a facility for teens with mental health conditions and eating disorders. The woman had underlying medical conditions putting her at higher 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 or job duties.

“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 a pandemic, that dialogue could include concerns about preexisting conditions that could exacerbate the virus. “It might mean that the employee should [do remote work],” 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 [the Occupational Safety and Health Administration] requires. The CDC [Centers for Disease Control and Prevention] changed its guidelines [throughout the pandemic]—but OSHA’s guidelines [remained] the same throughout.”

Use Negotiation Before Litigation

Both attorneys suggest workers negotiate with employers before escalating to a lawsuit. “Hopefully, they can reach a resolution on their 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.”

“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?” 

Find an Experienced Employment Law Attorney

Employees are protected under both federal and state laws on employment and discrimination. See our overviews of employment law and discrimination law for more information about reasonable accommodations, disability discrimination, and workplace protections under federal laws, including:

• Title VII of the U.S. Civil Rights Act;
• The Americans with Disabilities Act (ADA);
• The Age Discrimination in Employment Act (ADEA); and
• The Family and Medical Leave Act (FMLA).

Visit the Super Lawyers directory to find an experienced employment lawyer for legal advice about your employee rights and navigating an accommodations dispute.