Examples Of Reasonable Modifications To A Face Mask Policy
- Allow a person to wear a scarf, loose face covering, or full face shield instead of a face mask.
- Allow customers to order online with curbside pick-up or no contact delivery in a timely manner.
- Allow customers to order by phone with curb-side pick-up or no contact delivery in a timely manner.
- Allow a person to wait in a car for an appointment and enter the building when called or texted.
- Offer appointments by telephone or video calls.
Sample Letter To Request Reasonable Accommodations During The Covid
This sample letter can be used to ask your employer or prospective workplace for reasonable accommodations you need in the hiring process or for your job.
I am writing to request reasonable accommodation for my disability/disabilities. I . I am also . Because of my disability, I need to take extra care to protect myself from COVID-19. I need the following accommodations: . My has deemed these accommodations/modifications necessary in light of my disability. Please see the attached letter from . Additionally, please see the order requiring me to shelter-in-place during the COVID-19 pandemic. Federal and state law require that employers accommodate employees and applicants who have disabilities. Please respond to this request by . Feel free to contact me at if you have any questions. Thank you.
What Employers Are Covered By The Ada
Job discrimination against people with disabilities is illegal if practiced by:
- private employers,
- and labor-management committees.
The part of the ADA enforced by the EEOC outlaws job discrimination by:
- all employers, including State and local government employers, with 25 or more employees after July 26, 1992, and
- all employers, including State and local government employers, with 15 or more employees after July 26, 1994.
Another part of the ADA, enforced by the U.S. Department of Justice, prohibits discrimination in State and local government programs and activities, including discrimination by all State and local governments, regardless of the number of employees, after January 26, 1992.
Because the ADA establishes overlapping responsibilities in both EEOC and DOJ for employment by State and local governments, the Federal enforcement effort is coordinated by EEOC and DOJ to avoid duplication in investigative and enforcement activities. In addition, since some private and governmental employers are already covered by nondiscrimination and affirmative action requirements under the Rehabilitation Act of 1973, EEOC, DOJ, and the Department of Labor similarly coordinate the enforcement effort under the ADA and the Rehabilitation Act.
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Employee With Breathing Issues Doesnt Have Ada Claim
In a similar case, James Benny Jackson worked for Blue Mountain Production Company in Mississippi as a chemical operator. The company primarily mined and processed absorbent clay which was then sold as cat litter. After over a decade of work in the chemical platform area, Jackson began to experience asthma-like conditions and was diagnosed with chronic obstructive pulmonary disease . He took leave from work under doctors orders but was eventually released to returnwith the suggestion that he not be exposed to the same environment as before.
Jackson became frustrated as he was unable to secure another position at the company, and indicated that he might as well retire. Although other positions such as forklift operator came open, he didnt apply for the positions and Blue Mountain did not offer them to him. He filed an ADA lawsuit against the company, alleging that it failed to reasonably accommodate him by not slotting him into another job.
Court Cases: Ada And Face Masks
Resurrection School v. Hertel
In a ruling handed down on August 23, 2021, the Sixth Circuit Court of Appeals, upheld a district court ruling that refused to block a mask mandate put in place by the Michigan Department of Health and Human Services. Resurrection Catholic Elementary School sued Elizabeth Hertel, the Director of the Michigan Department of Health and Human Services, claiming the face mask mandate was a violation of their rights to free exercise of religion, equal protection, and due process, because face masks hide faces made in Gods image and likeness. Although the mask mandate in Michigan was lifted before this decision, the Sixth Circuits decision is important in the event a new mask mandate is imposed. The court relied on a rational basis test, saying the state has a legitimate interest to keep the public safe and that the mandate applied to all elementary schools and did not single out religious education institutions.
Pletcher v. Giant Eagle Inc.
Bunn v. Nike, Inc.
Pletcher v. Giant Eagle Inc.
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The Americans With Disabilities Act
This federal law demands that employers give workers with disabilities full access to everything that a worker without a disability may have. Employees can also request that policies or practices within the company that discriminate against employees with disabilities be altered. The ADA prohibits employers from discriminating against employees with disabilities in all employment areas and requires that reasonable accommodations be considered through an interactive process.
Are There Other Options Besides Telecommuting
Would moving the employee to another location at work, restructuring the job, or a modified work schedule solve the problem? Notably, even the EEOC acknowledges that an employer does not have to allow telecommuting if there are other reasonable, equally effective accommodations available, even if telecommuting is the employees preferred choice. Employers should carefully assess whether telecommuting resolves the workplace issue and if it is the only accommodation available. If working from home is the only possible reasonable accommodation, you will have to determine whether physical presence in the workplace is an essential function of the job.
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Ableism Negative Attitudes Stereotypes And Stigma
An ableist belief system often underlies negative attitudes, stereotypes and stigma toward people with disabilities. Ableism refers to attitudes in society that devalue and limit the potential of persons with disabilities. According to the Law Commission of Ontario:
may be defined as a belief system, analogous to racism, sexism or ageism, that sees persons with disabilities as being less worthy of respect and consideration, less able to contribute and participate, or of less inherent value than others. Ableism may be conscious or unconscious, and may be embedded in institutions, systems or the broader culture of a society. It can limit the opportunities of persons with disabilities and reduce their inclusion in the life of their communities.
Ableist attitudes are often premised on the view that disability is an anomaly to normalcy, rather than an inherent and expected variation in the human condition. Many in the disability rights movement have pointed out that people without disabilities are merely temporarily able-bodied. As one author writes,
veryone is subject to the gradually disabling process of aging. The fact that we will all become disabled if we live long enough is a reality many people who consider themselves able-bodied are reluctant to admit.
In its own consultations with people with disabilities, the Law Commission of Ontario reported:
How To Determine Whether Asthma Is A Disability Under The Ada
The facts of a particular situation will determine whether the court considers asthma to be a disability.
Lets just say that having an asthma attack once when you were 12 likely wouldnt qualify as a disability under the Americans with Disabilities Act .
How do you show that your asthma is a disability? For your specific case, youre going to have to show one of three things. Under the ADA, a plaintiff must show that she:
- has a physical or mental impairment that substantially limits one or more major life activities
- has a record of such an impairment or
- is regarded as having such an impairment.
In law, we often refer to lists like the above as elements. And we generally refer to all of the elements together as a test.
The test for disability is whether a plaintiff can prove one of the elements. This is an or test. As you can see, the list is separated by the word or. That is how you know that the test only requires proof of one element.
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What Are The Essential Functions Of The Employees Job
Would telecommuting actually work for this particular employee? Are physical presence, in-person communication, and teamwork essential functions of the job? Does the employee have the technological infrastructure at home to do his or her job? Do you have the IT capabilities and overall resources to make the arrangement viable? How about work-related travel for the employee? And there may be confidentiality concerns if the employees job requires the handling of sensitive or proprietary information outside the workplace. Whether physical presence is an essential requirement of the employees position a fundamental duty as opposed to a marginal duty will be a critical determination. Remember that you do not have to remove any essential job duty to allow an employee to work at home. Further, courts have held that only the employer, not the employee, gets to determine what job functions are essential.
Accommodations During The Covid
Most employers are required to provide reasonable accommodations unless the accommodation:
- Would be too difficult for your employer to provide
- Would endanger the health and safety of others
- Changes your job in a significant way or
- Your employer is not covered by the ADA or DFEH.
During the COVID-19 pandemic, it is very important that accommodations do not put your or others health and safety at risk.
Some examples of accommodations are:
Working from Home
Many jobs can be done from your home. Working away from customers and co-workers could be an appropriate accommodation if you are concerned about getting COVID-19 while at work. Your employer may be able to make changes to your job or give you equipment that lets you do your job at home.
Restructuring means making changes or adjustments to your job. Your employer may restructure your job so you do not have to interact as much with clients, customers and co-workers. For example, your employer might have customers to pay online or use a card reader at a safe distance instead of paying with cash.
Re-assignment means giving you a different task or job duty. As a reasonable accommodation during the COVID-19 pandemic, you may be assigned tasks where you spend less time around people to reduce your risk of getting COVID-19.
Personal Protective Equipment
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Physical Or Mental Impairments
To be disabled under the ADA, you must have a physical or mental impairment. Not everything that keeps you from doing activities is an impairment. But, the ADA uses a broad definition.
A physical impairment is any medical disorder, condition, or loss that affects the body. These can be:
A mental impairment is any mental or cognitive disorder. This includes:
- Intellectual disability,
What qualifies for the ADA?
Physical or mental impairments covered by the ADA include:
- AIDS, and its symptoms
- Blindness or other visual impairments
- Loss of body parts
Some short-term impairments with little or no lasting effects do not qualify. The ADA does not protect against unfair treatment based on lifestyle.
Conditions that are not impairments include:
- Common cold or the flu
- Sprained joint
- Minor and non-chronic gastrointestinal disorders
- Broken bone that is expected to heal completely
- Compulsive gambling
- Old age
- Bisexuality or homosexuality
Does drug addiction qualify?
Casual drug use is not an impairment. This applies to unlawful drugs and to prescription drug use. There are few situations where drug addiction qualifies under the ADA. One is if someone has a history of addiction or is thought to be addicted to drugs.The addiction could qualify as an impairment. It is not an impairment if someone has a history of addiction and is now using illegal drugs.
Responding To Requests For Reasonable Accommodations
Following an accommodation request, the employer and the individual should engage in an interactive process to identify the appropriate reasonable accommodation. If a manager or direct supervisor receives an accommodation request, he or she should refer the employee to HR or another person who is responsible for responding to such requests. The person receiving the accommodations request may:
- Ask questions that will enable him/her to make an informed decision about how to meet the request. Including:
- What type of accommodation is the employee requesting?
- What is the nature of the employees disability/functional limitation?
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Substantially Limits One Or More Major Life Activities
Remember those elements above? And that there are three ways in which you can show a disability? Well, we are going to talk about the first prong first.
The court first determined whether her disability substantially limited one or more major life activities. Because her work was the only cause of her asthma, the court analyzed whether her asthma limited her ability to work.
The court found that Ms. Merit was not limited from working in another job where she could work in a smoke-free environment.
Thus, her asthma did not qualify as a disability. So, the takeaway, is that if your disability only affects your ability to work, and you can work in another job at the same company, you do not have a disability under the ADA.
In this case, she didnt have a disability because she could easily move to a job in a smoke-free environment.
The court said that because her asthma did not prevent her from working at a broad classification of jobs, that it did not fit the definition.
This is unlike other disabilities where numerous jobs are restricted because of a disability.
This court was likely being harsh. And other courts might find differently. But the point is this: if your asthma isnt a significant impairment, it might not qualify as a disability.
What Employment Practices Are Covered
The ADA makes it unlawful to discriminate in all employment
- practices such as:
- all other employment related activities.
It is also unlawful for an employer to retaliate against you for asserting your rights under the ADA. The Act also protects you if you are a victim of discrimination because of your family, business, social or other relationship or association with an individual with a disability.
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Examples Of A Person With A Disability Who Might Not Be Able To Wear A Face Mask
- Individuals with asthma, chronic obstructive pulmonary disease , or other respiratory disabilities may not be able to wear a face mask because of difficult or impaired breathing. People with respiratory disabilities should consult their own medical professional for advice about using face masks. The Centers for Disease Control and Prevention also states that anyone who has trouble breathing should not wear a face mask.
- People with post-traumatic stress disorder , claustrophobia , severe anxiety may feel afraid or terrified when wearing a face mask. These individuals may not be able to stay calm or function when wearing a face mask.
- Some people with autism are sensitive to touch and texture. Covering the nose and mouth with fabric can cause sensory overload, feelings of panic, and extreme anxiety.
- A person who has cerebral palsy may have difficulty moving the small muscles in the hands, wrists, or fingers. Due to their limited mobility, they may not be able to tie the strings or put the elastic loops of a face mask over the ears. This means that the person may not be able to put on or remove a face mask without assistance.
- A person who uses mouth control devices such as a sip and puff to operate a wheelchair or assistive technology or uses their mouth or tongue to use assistive ventilators may be unable to wear a face mask.
Can I Request A Reasonable Accommodation For Asthma
Sam* has lived with asthma most of her life. Her asthma was well-controlled, but she learned that strong cleaning agents used in her old office could trigger intense asthma symptoms.
There have been a couple of occasions where the carpets in the building I was located in were shampooed. We werent given notice, so when I showed up to work I would walk into a cloud of chemical smell that would often persist for several days.
Sams story isnt entirely unique. According to the American Lung Association, 1 of every 12 adults live with asthma, and nearly 22 percent of those adults say that their symptoms get worse from exposure to triggers at work.
If youre part of that 22 percent or you want to potentially avoid joining their ranks you may want to talk to your employer about reasonable accommodations for asthma under the Americans with Disabilities Act .
The ADA is a federal law passed by Congress in 1990, and is designed to protect against discrimination on the basis of disability in most areas of public life, including workplaces, schools, and public and private places that are open to the general public. Many states and cities have similarly enacted laws aimed at protecting individuals with disabilities from discrimination.
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What Does It Mean To Have A Disability
First, many people are reluctant to call themselves disabled, particularly if they suffer from depression or anxiety. For some, it seems wrong to claim a disability status because the iconic image of someone with a disability is a person suffering from a physical disability: for instance, a person in a wheelchair. Some dont think of themselves as disabled if the condition is temporary, as with some types of depression or anxiety. If this describes you, I urge you to let go of your reluctance to seek protection under this statute. It doesnt mean you are weak or a charlatan for claiming protection under the Americans with Disabilities Act. This law is there precisely to help people in your situation. Moreover, depending on your situation, the ADA may be the only legal remedy you have to protect yourself from wrongdoing in the workplace. And it is important that you seek the protections before you are fired, because you can only request accommodations while you are employed. The sad truth is that legal problems in the workplace can devolve into brutal hand-to-hand combat. To protect yourself, you need to use all the tools that you have.
Under the ADA, a person suffers from a disability if she has a physical or mental impairment that substantially limits one or more major life activities of such individual a record of such an impairment or being regarded as having such an impairment. 42 U.S.C. § 12102.