Q: WHAT ARE MY RIGHTS IF I HAVE A MEDICAL CONDITION THAT PUTS ME AT HIGHER RISK OF SERIOUS ILLNESS OR DEATH IF I CONTRACT COVID-19?
The Americans with Disabilities Act (ADA) is a federal law requiring that employers make reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities. Most of the health conditions recognized by the CDC to increase the risk from COVID-19 would likely also qualify as disabilities under the ADA. There may also be additional medical conditions that your medical provider determines put you at higher risk.
You should consult with your medical provider about any health conditions you have and what precautions are generally recommended by the CDC and specifically advised by your medical provider to reduce your risk of contracting COVID-19. Individuals with certain mental health impairments may also be entitled to accommodations under the ADA. Reach out to your local or state association for assistance in making an accommodation request. You can also seek an accommodation directly from your employer.
Q: HOW DO I REQUEST AN ADA ACCOMMODATION?
You can request an accommodation through your human resources department. They may have an ADA request form you can use. If they do not have a form, you can also make a verbal request, but it is a good idea to follow up in writing. You do not have to provide medical documentation to support your initial request, but you may be asked for medical information confirming that you have a disability that requires accommodation, and in most cases, you will need to provide the requested information. Your medical provider may be able to provide you with a “doctor’s note” describing your disability and suggesting accommodations.
Q: WHAT KIND OF ACCOMMODATIONS CAN I REQUEST?
Appropriate accommodations will vary depending on your job requirements and your medical condition. Possible accommodations could include additional personal protective equipment (for example, more protective masks), physical barriers, changes to the school building or schedules, temporary transfer to a different position, remote work, or temporary leave. You should consult with your medical provider about your specific situation. You should also consult with your local association about what accommodations options are available in plans to return to in-person instruction.
Q: WHAT DO I DO IF MY EMPLOYER DENIES MY REQUEST?
Your employer is required to consider your request and engage in an “interactive process” with you to try to find an appropriate accommodation. They do not have to provide an accommodation if doing so would be an “undue hardship” but if they deny your initial request, you can ask that they consider alternatives, and you can seek more information to support your needs. If your requested accommodation is denied, it is a good idea to ask why, to provide more additional information, and to propose possible alternative accommodations, if medically advisable.
You have the right to challenge the denial of an accommodation by filing a complaint asserting that the denial violates your ADA rights. And you should know that it is illegal for an employer to retaliate against you for requesting an accommodation or for filing a complaint under the ADA. Complaints can be filed with the Equal Employment Opportunity Commission (EEOC) or your equivalent state agency. There are strict deadlines for filing complaints (usually either 180 or 300 days, depending on your state). You may also be able to challenge a denial of accommodations through the union grievance process. In any case, if your request is denied, you should notify your local association.
Q: WHAT IF I'M HIGH-RISK BECAUSE OF MY AGE?
Older age alone is not considered a disability, but many health conditions that may be more prevalent in older age may qualify as disabilities. You should consult with your medical provider to see if you have any of these conditions.
Although the Age Discrimination in Employment Act (ADEA) does not provide for accommodations in employment the way the ADA does, employers are not prohibited from providing accommodations to older workers in light of the known higher risk of serious illness or death from COVID-19. Check with your local association about any accommodations for older workers that may be included in plans to return to in-person instruction or in separate agreements with your employer.
Q: CAN I REQUEST AN ACCOMMODATION IF I'M PREGNANT?
Although pregnancy itself is not considered a disability under the ADA, many pregnancy-related conditions would likely qualify as disabilities, and accommodations could be sought just as with any other ADA-qualifying disability. At present, 29 states and 4 cities have laws specifically requiring employers to provide reasonable accommodations to pregnant people. Employers are prohibited under the federal Pregnancy Discrimination Act from discriminating against employees on the basis of pregnancy, childbirth, or related medical conditions.
Q: WHAT CAN I DO IF I LIVE WITH SOMEONE WHO IS HIGH-RISK?
Unfortunately, the ADA does not require employers to provide accommodations to protect family members of employees who do not themselves have a physical or mental impairment. You should check with your local association and state affiliate about options for educators who live with high-risk family members, as this may be a part of plans to return to in-person instruction or agreements between affiliates and employers.
If there are no other provisions to accommodate you, you may be able to take leave under the Family and Medical Leave Act (FMLA) or a similar state law providing for family leave. FMLA leave can be taken to care for an immediate family member (spouse, parent, or child) with a serious health condition. Under the FMLA regulations, “serious health condition” can include a chronic condition that requires periodic visits for treatment by a healthcare provider, continues over an extended period of time, and may cause episodic rather than continuing periods of incapacity. FMLA leave is unpaid, but it does provide rights to return to your job. In order to qualify for FMLA, you must have worked for the employer for 12 months and have worked 1,250 hours during the 12 months prior to taking the leave.
As a short-term option, if the person you live with has been advised by a medical provider to self-quarantine, you may be able to use Emergency Paid Sick Leave under the Families First Coronavirus Response Act (FFCRA), which provides up to 80 total hours of leave for specific COVID-related reasons.
If the high-risk individual is your son or daughter, you may be able to take leave under the FFCRA’s emergency FMLA expansion, if your child’s regular care provider is not available due to COVID-related reasons. “Son or daughter” means your own child, including a biological, adopted, or foster child, a stepchild, a legal ward, or a child for whom you have day-to-day responsibilities to care for or financially support. It also includes an adult son or daughter who needs your care due to a mental or physical disability. All public employees (except federal employees) who have been on the employer’s payroll for at least 30 days prior to requesting leave are entitled to this expanded FMLA leave, even those who do not qualify for regular FMLA.
Additional information about your rights can be found here: https://educatingthroughcrisis.org/your-rights/
Always check with your local and state associations about additional rights you may have under state laws, collective bargaining agreements or memorandums of understanding with the employer, or policies. If you believe your rights have been violated or you need assistance filing a legal complaint, you should contact an attorney for legal advice.