Disability Rights North Carolina

Introduction

Safety in the Workplace during COVID-19

Safety in the Workplace during COVID-19

During the COVID-19 pandemic, people with disabilities may be concerned about safety in the workplace. You may find it difficult to return to work. For instance, if you have a preexisting mental health condition like anxiety disorder, you may have a hard time coping with the stress of the COVID-19 pandemic. Or you may have a physical disability or health condition that places you at an increased risk of complications from COVID-19. Below is a guide for navigating your legal rights in the workplace.

Step 1: Request a reasonable accommodation.

If you have disability-related difficulties because of COVID-19, you have the right to request a reasonable accommodation. A reasonable accommodation is a change to the rules, which you need because of your disability. Most employers with 15 or more employees are required to provide accommodations under the Americans with Disabilities Act (ADA).

Some COVID-19 accommodations suggested by the Equal Employment Opportunity Commission (EEOC) include:

  • Designating one-way aisles
  • Using Plexiglas, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible
  • Temporarily allowing working from home with necessary aids like screen-reader software or video relay or video-remote interpreting
  • Temporarily restructuring job and marginal job duties
  • Temporarily transferring to a different position
  • Modifying a work schedule or shift assignment
  • Increasing cleaning protocol, mask requirements, and screening

To ask for a reasonable accommodation, follow your employer’s accommodation policies and procedures. Put your request in writing (email is fine) and send it to a manager, supervisor, or human resource representative. Some employers have special accommodation forms, and others accept simple letters.

Your employer may need a doctor’s letter to support your request if your disability is not obvious. This letter should explain your condition and why you need specific workplace accommodations. We recommend that you ask your employer to give you a response by a specific date. Sample letters are included at the end of this fact sheet.

Step 2: Work with your employer to get what you need.

Once you make your request, your employer may grant or reject it. Or they may offer you an alternate accommodation. If they reject your accommodation request, you have the right to ask for an explanation. And if they reject your request, they need to work with you to find another accommodation to meet your needs. Under the law, they can offer you another accommodation if it gives you what you need for your disability. It is important for everyone to be flexible and act in good faith when considering an accommodation.

Step 3: Know your privacy rights.

Under the ADA, your employer may not ask unnecessary questions about your disability. For instance, your employer shouldn’t ask if you have a medical condition that would make you especially vulnerable to COVID-19. But if your disability is not obvious, your employer can require you to provide basic information about the nature of your disability. This will help them make sure you really need the accommodation. They should only share this information with the people making a decision about your request.

 Step 4: Safety in the workplace.

You have a legal right to a safe and healthy workplace. If you need extra safety precautions for your disability, you can ask for those as an accommodation. You have the right to file a confidential complaint with the Occupational Safety and Health Administration (OSHA) if you think your workplace is unsafe. You can do so by visiting the NC Department of Labor website or calling 1-800-NC-LABOR.

Because of COVID, employers may now legally:

  • Ask employees returning from travel about their exposure.
  • Ask an employee why they have been absent from work.
  • Require safety precautions like hand washing.
  • Require employees to wear masks, gloves, or other protective equipment (but the employer may need to make reasonable accommodations because of your disability, like providing non-latex gloves, or gowns that fit over wheelchairs.)
  • Take employees’ temperatures.
  • Ask employees about symptoms like fever, chills, cough, shortness of breath, or sore throat.
  • Require a medical note (or similar) allowing return to work after medical leave.
  • Delay an employee’s start date because of symptoms.

However, if these things are required, it must be required of all employees.

Step 5: Take action if necessary.

If you request a reasonable accommodation and your request is denied, or you feel retaliated against, you might need extra help. Some examples of “retaliation” include cutting your pay, transferring you, cutting your hours, firing you, or passing you over for a raise or promotion.

If this happens, you can contact DRNC for help. You also have the right to file a confidential complaint with the EEOC.

We suggest that you file your complaint as soon as possible. You must file at the EEOC no later than 180 days after the incident happened. If you wait more than 180 days, you lose the right to file a charge of discrimination at the EEOC. After 180 days you also lose the right to sue your employer in court. You do not need any attorney to file an EEOC complaint, but you may retain one if you would like. Please see our EEOC Complaint Filing fact sheet for more information.

Additional things to keep in mind

Working from home can sometimes qualify as a reasonable accommodation. But it will depend on the nature of your job. If you can fulfill all the essential parts of you job at home, then it is likely a reasonable accommodation.

It is harder to get temporary leave as an accommodation. It can help to ask for a specific time period (e.g. three months) rather than leave the time frame indefinite.

An employer does not always have to provide a requested accommodation. An employer can deny your request if:

  • the accommodation is an unreasonable change to a workplace; or
  • it is too difficult for your employer to provide because of cost, impact on other employees, or the nature of your job.

So, for example, if allowing you to work from home causes your employer undue hardship, then they may deny your request for that accommodation.

Your employer may not ask you to leave under the Family and Medical Leave Act (FMLA) before considering your accommodation request. If you are also asking for FMLA leave, you should make any request for a reasonable accommodation separate from any FMLA request or FMLA forms. A request for leave under FMLA is a separate process and does not count as a request for an accommodation.

Additional resources

Sample Letters – COVID-19 and Workplace Accommodations

 

Guidance from the EEOC – “What to know about COVID-19 and the ADA