Returning to Work

An Employee’s Guide from CCDC

1. Questions to Ask
2. Talk to Your Employer
3. Reasonable Accommodations
4. Other Options
5. Reporting an Unsafe Work Environment
6. Discrimination
7. Resources

CCDC has received questions about returning to work as it relates to people with disabilities.   Our state has a return to work guidance that is relevant to unemployment.   The EEOC has also issued guidance about returning to work.  It is in Section G: Return to Work.

People with disabilities and those we live with have vastly different experiences and needs.  Therefore, this is not intended to be directive or legal guidance.  This document should help people think about what questions they need to ask of themselves and their employers.   

Questions to Ask

• Do you have a disability?  
  • The ADA defines disability as a substantial impairment in a major life activity.  
  • People who are considered disabled or have a record or history of disability are also covered under anti-discrimination laws. 
• If yes, does your particular disability make you vulnerable or at risk if you get COVID-19?  
  • Possible disabilities that put you at increased risk include respiratory disabilities, heart conditions, neurological impairments, and chronic illnesses.   
• Do you live with someone with a disability? 
  • If yes, does that disability make the person vulnerable or at risk if they get COVID-19?
• Are you over 60?
• Do you live with someone over 60?

Answering “Yes” to any of these questions means you have additional things to think about with regard to returning to work.   

Talk to Your Employer

OSHA Guidance for Employers

Questions to ask yourself and your employer:

• Can my job be done remotely?   
  • If you have a disability, you could request this as a reasonable accommodation.   
  • If you do not have a disability yourself, there is no requirement to allow work from home, but governments, including the state of Colorado, are strongly encouraging this practice. 
• Is my employer following COVID guidance issued by OSHA?  
  • Check on your employer’s return to work policies and workplace safety policies.  
• Do I need to interact with the public as part of my job?  
  • If yes, is my employer mandating mask use?  
• Do I have a safe way to report violations of company policy (such as people not wearing masks)?

Reasonable Accommodations

If you ask for a reasonable accommodation, remember:

• You need to ask –your employer cannot read minds.  
  • Make your request in writing and explain the connection between your disability and the requested change.  
  • For example, I have a neurological disability and weakened lung capacity and request to work at home. Working from home reduces my exposure to other people and reduces my risk of contracting COVID-19.
• Your employer may have a specific form they want you to use.  
  • Use their way unless you have a disability-related reason not to.  
  • There is no sense in arguing about that issue.
• Your employer will engage in an interactive process.  
  • It may be give-and-take on both sides.   
  • Be solution-focused.
• You still need to be able to do the essential functions of your job.  
  • For example: If you are a customer service representative and the system can’t forward calls to your home phone, then an essential function of your job requires you to be in the office.

Other Options

If there is no way to accommodate you in your position consider:

• Asking if there are other positions for which you qualify.
  • If so, ask for a transfer when there is an opening.
• Ask how much stored up sick or vacation time you have. 
  • Likely it will not be enough to get through the remainder of the pandemic, but you can use it while you figure out your other options.
• You MAY be eligible for unemployment. 
  • To maintain your eligibility for benefits, you must complete regular work search activities that help you return to work.  

Reporting an Unsafe Work Environment

• If you fear your workplace is not safe and your management has not addressed concerns, you can look into the recently signed  Whistleblower Protection Public Health Emergencies Act. 
  • This new law offers significant protections for workers (employees and independent contractors) from discrimination or retaliation by their employers. 
  • Workers are protected from discrimination or retaliation for raising concerns about workplace safety or health during a public health emergency.
  • Workers are also protected when wearing their PPE at work. 
  • The full text of the law and more information is here: https://leg.colorado.gov/bills/HB20-1415.

Discrimination

If you feel you have faced discrimination, see what your employer’s internal grievance process is.  If you are a member of a union, they should be able to help you.  Otherwise, if you want to file a discrimination complaint you must submit an administrative complaint with a government agency.  

You can go to the EEOC or the state Civil Rights Division if you believe you have faced disability discrimination.

Resources

EEOC Pandemic Guidance

Sate of Colorado Guidance

Guidance for Employers and General Public

CCDC Statement on Masks and the Americans with Disabilities Act

For Immediate Release
May 27, 2020: 

DENVER, Colorado—The Colorado Cross-Disability Coalition (CCDC) is Colorado’s largest statewide, disability-led, disability rights organization. CCDC advocates for social justice on behalf of people with all types of disabilities (cross-disability). This Statement is made jointly by CCDC’s Executive Director, CCDC’s staff, and CCDC’s Civil Rights Legal Program. This Statement is not intended to be construed as legal advice. As set forth below, all information regarding how to proceed under the circumstances is made available by the United States Department of Justice (DOJ).

CCDC was founded 30 years ago to make sure that the Americans with Disabilities Act (ADA) became real in Colorado. To that end, we have been involved in both education and enforcement regarding the ADA. CCDC has been aggressive about requiring governments and businesses to make reasonable modifications to policies, practices, and procedures when necessary to enable people with disabilities to have equal access to any public accommodation. A public accommodation is any place where the public can engage in activities such as stores, hotels, movie theaters, restaurants, golf courses, etc. Non-profits like CCDC’s office and meeting areas are public accommodations. (All information about what the ADA says is publicly available on the DOJ website www.ada.gov.) The ADA also applies to state and local governments (including special districts), transportation, and employment. 

We have learned that people who object to requirements to wear masks or face coverings are advising followers to state that they have a disability and that it is a violation of the ADA to require that individuals wear a mask. There are individuals with disabilities who cannot use masks at all or who can but only with great difficulty. Securing a mask may be difficult to impossible for individuals who may not be able to get a mask on and off independently and lack constant support from a caregiver or other person and for individuals with facial anomalies. However, we are aware there are others invoking this rule without cause.

It is our position that businesses and governments ARE allowed to deny entrance to people who are not wearing masks. In fact, we encourage it.

Public accommodations must also protect their employees and other customers. In fact, the DOJ already has spoken on the issue of the fraudulent claims by people who simply do not want to wear a mask and claim they have a disability as the reason why. The DOJ position states the following: “The Department urges the public not to rely on the information contained in these postings and to visit ADA.gov for ADA information issued by the Department.” See *COVID-19 ALERT: Fraudulent Facemask Flyers* (DOJ COVID-19 ALERT). Furthermore, the ADA regulations in the section that governs public accommodations speak to this issue:

Sec. 36.208 Direct threat.

(a) This part [Title III of the ADA] does not require a public accommodation to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of that public accommodation when that individual poses a direct threat to the health or safety of others.

(b) Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.

(c) In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk.

If a person claims that they are unable to use a mask, the public accommodation must make reasonable efforts to accommodate the customer in a different way. This must not involve requiring staff to take unsafe risks. A reasonable person can conclude that behaviors that are contrary to local health department guidelines are unreasonable and unsafe. Some examples of accommodations or modifications might include:

• Telephone or video chat services
• Curbside delivery
• Allowing a substitute person to pick up and item with proper permission. This may include taking a credit or debit card number by phone and then allowing someone else to pick up the item with a special code
• When possible and in some unique situations, delivering the good to the person outside of curbside delivery

CCDC recommends that businesses post a sign outside that says “Masks Required” and also provides a phone number and email address for someone to contact should they be unable to use a mask. Doing this will eliminate the need for an employee to have to debate the situation with an un-masked person.

“We want you to protect your employees. Some may have disabilities themselves, but more importantly, they are our neighbors, friends, and the essential workers that keep our community going. Why would anyone want to risk harming the people that they want to provide service to them?” Julie Reiskin, Executive Director 

Common Questions:

Can I ask the person what their disability is?

No, you cannot. You can ask why they cannot wear a mask, but it is irrelevant. You do not need to let them in.

Can I ask for proof of disability?

No. Generally, requiring an individual to prove a disability does not occur a complaint is filed and you are in court for an ADA lawsuit or before the DOJ for an administrative complaint. Remember, the person claiming a disability has the burden of proving their disability meets the strict definitions of the ADA to the court. If the individual who does not want to wear a mask does not have a disability but claims that they do and if the claim is fraudulent, the individual will lose in court. It is a risk. Fraudulent lawsuits have consequences. If someone asks for a modification of policy that is significant or maybe an undue burden, the public accommodation could ask for proof, but we recommend you avoid this and consult with an attorney before doing so. Having a condition or diagnosis does not necessarily mean that the person has a disability under the ADA. What meets the ADA definition of an individual with a disability is complicated and requires proof of a substantial limitation of a major life activity and more. All of this can be found on the DOJ website referenced above.

 What if the person has a note from their doctor?

That is irrelevant. Whether an individual is an individual with a disability is a legal definition, not a medical diagnosis.

How far must I go to provide services to this person?

A public accommodation must make reasonable modifications to its policies, practices, and procedures. You need not fundamentally alter your business model or go to such extreme expense that it would cause your business undue hardship. A large business with branches would need to consider the entire company’s, not just one location’s, resources. Under no circumstances must you ever put your employees or customers in danger under the direct threat analysis.

What if my employee says they do not want to work near anyone who does not have a mask?

This is a reasonable request, and you should support this. Check with the Occupational Safety and Health Administration for employee safety requirements. Also, you must follow state, city, or county orders that govern wearing a mask in a public location. You might violate the law by not wearing a mask. See also the DOJ COVID-19 ALERT referenced above.

What if the customer has a mask but it is hanging from their neck?

Instruct your staff to request that the customer secure the mask appropriately or leave. Confirm your staff knows to maintain appropriate social distancing restrictions of 6-feet as recognized by the Centers for Disease Control and other health authorities.

What if someone has a visible disability and their mask falls off? Are you obligated to help the person put it on?

No, you are not required to provide personal services like this. If you or your staff want to do so you may offer and then listen to the individual as they instruct you on how to do this. However, any staff person who feels compromised or uncomfortable must be permitted to not provide this level of assistance. 

Specific disability issues:

While there appear to be people blithely making up disabilities, there are people with real disabilities, and the rule of reasonable modification of policies always applies with the caveats set forth above. 

Deaf/Hard of Hearing:

Very few Deaf people read lips as it is rare but sometimes effective. However, some people who are hard of hearing do use a combination of lip-reading and hearing aids to understand others. If you can have at least some employees use a mask with a clear plastic panel to make the mouth visible, that will be appreciated. A face shield might be appropriate under the circumstances. You should conduct research regarding available types of masks and face coverings to ensure they are effective for the purpose of preventing the spread of the virus.

Blind:

If you have signage, please have Braille underneath.* Also, have available paper flyers in very large print (20 point font or higher) with the phone number to call for assistance. (Dial 711 for a Relay Operator)

Mental Health/Cognitive:

While some individuals may not be able to understand why they have to wear a mask or have extreme discomfort when something is over their mouth, the health risks of allowing people in who are not masked outweighs the benefit. Make sure not to challenge their experience or act like you do not believe them if they say they cannot wear a mask.

Physical:

Some people have facial structures that make mask-wearing impossible or may be unable to secure a mask if it falls off. For most of these individuals, the risk of serious illness or death from contracting COVID-19 is quite high, particularly for employees or other customers who already have respiratory problems and/or other disabilities that compromise their immune systems and are likely to understand mask policies.

Speech:

People with speech disabilities may be a bit harder to understand when wearing a mask. Feel free to ask them to repeat themselves if you do not understand. Most people with speech disabilities will be happy to repeat themselves. If they are unwilling to do so, they are not assisting you in the process of facilitating communication. Therefore, they should not be permitted to enter.

Perspectives from CCDC Staff with Disabilities

“I went into service because I wanted to protect my country and help others. I would never want to risk un-knowingly spreading this disease now even if my PTSD makes it harder to wear a mask. The mask makes me feel as though I am deployed again and in my decontamination suit.”

Michelle McHenry-Edrington Advocacy Coordinator and Air Force Veteran and her service dog, Edgar

“As a quadriplegic with limited hand function, I cannot re-secure most masks if it slips off. I understand I may need to leave a store or find another way to shop. That is an inconvenience. However, as a quadriplegic with reduced breathing capacity and a compromised immune system, I believe it is very likely I would not survive if infected with COVID. As a result, I will do everything in my power to ensure that I have a mask on so I do not infect you.  It is a matter of simple respect and kindness for other people and should not be made a political issue or an issue of faking disability for getting an accommodation.”

Kevin Williams, Civil Rights Legal Program Director

“I know I am hard to understand sometimes. I am never offended if you ask me to repeat myself.”  

Dawn Howard, Director of Community Organizing