COVID-19 and the Americans with Disability Act

Questions are popping up in private chats and it might be useful more broadly. One of the odd things mentioned was that someone’s employer passed around a written statement that Americans with Disability Act will not be honored during this time period. That seemed kinda mean and is certainly not true. That case study is documented here (See next comment) and might help us learn about new laws on diabetes.

The diabetic who was discussing this with me is a long standing member of our forum, but I wont say who - concerns about employer retribution.

There’s been a bunch of unusual stuff floating around that we don’t typically problem solve for. So, maybe this is a starting point for those topic discussions. They are tricky and there’s potential for people to loose their jobs. I’m not in one of those very complex situations, so I can contribute research, but I don’t think that I have much experience to offer. Your help is requested.

https://www.diabetes.org/coronavirus-covid-19/know-your-rights-covid-19

The video posted reveals just how busy ADiabetesAssociation is with questions like these, so know that these questions are common and many people are navigating.

Flowchat on recent federal legislation:

As a case study, we have one individual who is moving from telework to physically on-site soon. Lets see how this flow chart plays out under those conditions…just to see.



My question #1.) How do you answer the 1st question in the flowchart? What does it mean “Are you able to work or telework?”

One of our peeps currently works remotely and its able to work remotely, but the non-essential biz is returning everyone to onsite operations. So, the workplace is no longer providing that as an option. So, is the answer to this question YES or NO?

This diabetic would prefer to continue to work remotely because of covid and recent covid deaths (possibly 3, certainly 1) at their place of business. It involves an office environment where lots of people work in close proximity on computer workstations. The biz closed relatively late compared to others and is one of the first I have heard that is sending people back onsite. This makes them particularly high risk guinea pigs.

This workplace is not in MN, but its state has case incidence that are very similar to mine.

We have 1 month to figure this out. Gentleman, start your diabetes problem solving engines…

Ok, so looking at this again…I need to figure out what is EPSLA?

…Additionally, Congress has passed new laws in response to the pandemic. The Families First Coronavirus Response Act contains two laws that expand paid leave options for employees. The first is the Emergency Paid Sick Leave Act (EPSLA) and the second is the Emergency Family Medical Leave Expansion Act (EFMLEA). The EPSLA provides paid sick leave for workers in several circumstances, including for all people with diabetes who are unable to telework. The CDC (a federal government agency) has advised people with diabetes to stay home, causing them to be unable to work even though their employers have work for them. 29 CFR § 826.10. We encourage you to consult with your legal counsel to determine whether you are a covered employer under these new laws.
1-800-DIABETES (342-2383)

I looked at this many times. I think he comes out here in the flowchart.

This shows that our diabetic IS eligible for paid leave (whatever that is).

I’m no expert in disability law in the US but do have some experience. When I was working, I wanted to get a hypoglycemia alert dog and bring him to work. My employer was a well known large company. In general they were wary and disinclined to grant me approval for my request to bring a service dog to work.

The main issue, in my case, centered around the concept of “reasonable accommodation.” One example I remember talking about at the time was a hypothetical case of an employee confined to a wheelchair. If that employee’s workplace absolutely needed to be on the second floor of a building and there was no elevator in this building, then asking an employer to install an elevator was not considered a reasonable accommodation.

If, however, the accommodation was limited to some simple adjustments of say, elevating a work station bench level to enable wheelchair access, then that is likely a reasonable accommodation and the employer would need to allow this circumstance.

In my case, after much delay the company permitted my bringing a diabetes alert dog to work and it worked out. My biggest challenge after that was to manage my fellow employees’ interest in striking up individual relationships with my dog. Some of them just wanted to turn my dog into a “shop dog” or mascot.

I had to use patient diplomacy to gently disabuse people of that idea. Most co-workers understood the idea of a service dog and immediately fell in line but a few of my colleagues just didn’t get it.

I think a lot of disability employment practices hinge on “reasonable accommodation.”

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I really appreciate you taking a look, and your feedback. Now, we have concrete patient experience to consider.

My question for @Terry4 is sorta, “How did you have the guts to ask your employer if you could bring your dog to work?” Didn’t you worry that you might get fired just for asking or that people would complain that the dog was a distraction and single you out as the single source of “distraction” in the workplace? Like, maybe one day the dog, despite all of its benefits, gets diarrhea and poops on the floor and then you are the guy who brought diarrhea to the workplace - a target.

Did you consult a lawyer before you proposed bringing your pooch? Or, did you just go for it?

It is certainly ‘reasonable’ to accommodate this person’s desire to work from home because their entire staff has been working from home for weeks without difficulty. It is widely understood that company’s who can do work from, should work from home. So, this company is going out on a limb with the safety and well-being of their entire workforce, for no benefit. I feel like they are picking on our friend.

This is what ADAssociation said…You cant be fired for making a request of reasonable accommodation. Present the sample Reasonable Accommodation letter (on their website) to the employer.

Step 1.) Apply for accommodation

Sample Physician Letter for Requesting Reasonable Accommodations

American Diabetes Association Letter to Employers

If that request is denied, then they are required to say why and seek out a variety of alternative options to accommodate him in order to achieve the same goal. If none of that works, he can apply for FMLA.

Step 2.) FMLA lasts 12 weeks per year. It can be used intermittently, by the hour, or all in one lump sum.

https://www.dol.gov/agencies/whd/fmla

https://www.dol.gov/agencies/whd/fmla/faq

Step 3.) In the case that there are problems with the employer - like, unreasonable denial or retribution – Our diabetic should file complaint with the EEOC (Equal Employment Opportunities Commission).

eeoc.gov/federal-sector/filing-formal-complaint

P.S. The ADAssociation is barraged with phone calls. They answered quickly and walked me through this and were super helpful, but they did not have a lawyer available for me to talk to.

I think it goes like this…

It didn’t take guts to request bringing my service dog to work. I benefitted from the legacy of previous generations and belonged to a union. I found union protection a great way to maintain my sanity while working in the kingdom of a modern corporation.

I find it sad that younger generations don’t appreciate what a union can do for them at work. Many workers don’t understand that it took over 75 years of union activism to bring about the eight hour workday. This did not happen out of the largesse of the corporate kings. The same holds true for the weekend. My grandfather worked ten-hour days, six days per week, something some in today’s workforce have re-adopted.

There are few constraints on the power of employers in today’s workplace. A robust government regulator is one and a strong union is another. Summarily relinquishing either of these effective workplace counterbalances weakens the employee position. Employees should not be treated as modern day serfs.

As to a service dog acting inappropriately in the workplace, I don’t believe that the ADA permits poor dog behavior. The companies need to overlook an occasional “accident,” but not repeated behavior. My dog, professionally bred and trained for service work had better workplace behavior than most of the humans!

No, I didn’t use a lawyer in the process but I did include my union representatives in many of the meetings with Human Resources. I also consulted with the non-profit agency that placed my dog with me. They were well versed in the Americans with Disabilities Act. And to be fair, many people in management were secretly rooting for me as they loved dogs, especially good looking and well-trained ones. Sometimes your allies are not always obvious.

I think the case which prompted your post is clearly a reasonable circumstance for the company to permit working from home. Forcing a person with diabetes to show up and possibly expose themselves to what could turn out to be a deadly virus is simply the action reminiscent of a capricious king. I hope that more enlightened heads prevail in this situation.

Faced with recalcitrant management and the absence of a union, a lawyer may be helpful to remind the company that they do still need to comply with the law. The problem is that lawyers cost a lot in the context of today’s wages. Companies know this and count on that reality to work in their favor.

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hmmmm…Let me take some time to process what you have said so far.

I’m certain that he is not part of a union. I think that government regulation might be a real crap shoot right now because they will be inundated with complaints. There is a lot of new legislation and nothing has been ‘tried on for size’ in the courts. So many unknowns.

Hehehehe, I’m sure that’s the truth!

@mohe0001:

Here is a link to the EEOC document that discusses a number of ADA (that is Americans with Disabilities Act, in this case) issues as they apply to the current COVID-19 pandemic:

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

As diabetes has been listed by the CDC as a high-risk condition, I believe that employers are required to make “reasonable accommodation”.

If I were facing this … and the EEOC document suggest how to write a letter asking for reasonable accommodation … I would try to argue that continuing to telework would be easier than shift/schedule changes, erecting plexiglass shields everywhere, altering break rooms, etc.

Good luck.

John

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Mystery Diabetic friend,

You know who you are. My opinion has just changed dramatically about all of this. Now, that they are releasing positive vaccine reports, File! File! File for accommodation. You only have to hold out for a little bit until the vaccine is here. You only have to NOT get Corona for a little while.

File the accommodation application. Get this process rolling right away.

The good, the bad, and the ugly:

Its gonna be nerve wracking to file. Its as if they are holding a gun to your head, telling you to work in that cubicle (The Bad). But, there’s another gun pointed at your head, telling you that if you go into the cubicle, its gonna shoot you too (Corona virus is The Ugly).

But, your a good dude and you deserve reasonable accommodation. You have a family that loves you. You gotta get out your gun and do this. You can win this gunfight. You are the good guy. You are doing what is right. If they point guns at you, you point your gun at them. That’s only fair. Psych yourself up, Cowboy. The law is on your side.

The American Diabetes Association has worked very hard to try and help you do this (they are shooting at your employer already). You have a team. They are going to help protect you.

Just seeing this thread. I’m an HR Director and recommend looking carefully at current written policies of the company first - scour their website or employee handbook. You should find something about ADA and FMLA - ADA requires that employers post a notice describing the provisions of the ADA. It must be made accessible, as needed, to individuals with disabilities. EEOC also provides guidance on making this information available in accessible formats for people with disabilities. - You may also find guidelines for addressing ADA concerns - HR Office or other.

Before you do anything else, my recommendation is to start FMLA (Family Medical Leave Act) paperwork. It’s a guaranteed protection for you to be able to take leave (doctors visits/leaving work early or going in late because of complications with diabetes) without any repercussions - it’s unpaid but that’s not the point. The form requires you, your employer and your physician to complete a portion. This might help you buy yourself some time.

If they don’t know you have a CDC identified condition that puts you at high risk, tell them (no need to reveal which one) and ask to continue working remotely. - all this should be done with grace and understanding that they have a business to run, that you will do what you need to to remain engaged and productive etc…

If they say they don’t have work for you to do from home then take the federal Emergency Leave (80 hours) to buy yourself some time and complete the ADA paperwork - depending on the size of the company this may not be an option.

If you have sick leave - take some. Buy yourself as much time as possible.
If they don’t know you are high risk, they can’t help you. If they require you to go back to work - ask for the best social distancing spot in the building/office space.

Let the right people know that you have a CDC identified high risk medical condition (supervisor, HR, 2nd level supervisor) and would like to continue working remotely - make the request in writing, or request it in person/zoom and follow up with an email thanking the person for meeting with you and reiterating what they said. End with “If I misunderstood any of this conversation, please let me know as soon as possible, so I can make educated decisions on how to proceed.” This will help protect you as well.

I hope this is helpful

@Bonnie11 ;

Thank you for all of those concrete, and useful, suggestions. It is useful to have the perspective of a HR professional!

While I clearly never had to deal with a pandemic over the course of my working career, I did learn the importance of staying calm and rational in these matters. Getting red in the face and yelling, regardless of how frustrated you are, NEVER helps.

Thanks so much.

John

I agree that FMLA should be on file. I for many years didn’t think about it, as I never saw myself as disabled. But it has helped me get the department I needed to help keep blood sugars consist, able to go to workshops, conferences and classes for diabetes as needed and not getting dinged for being late if I had a low.
Once having that paperwork in your file, going at it with the ADA might be easier.
Many, many years ago, I went to the American Diabetes Association when I lost my license. They gave me the name of an attorney who looked at my case for free and gave me advice on how to proceed. So, they might be another option to get help.

Another forum member got a letter from the endo (primary care refused).
Also confirmed that family leave or leave of absence was possible.