Paula Tobler discusses COVID-19's impact on litigation, vaccination mandates and the impact on employees with disabilities, and the potential of testing alternatives.
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COVID and it's affects on everyone
Transcript for COVID and it's affects on everyone
Hi, my name is Paula Tobler. My pronouns are she, her, hers. I am a middle aged white woman with short brown hair wearing a red shirt and my ubiquitous headset. And behind me I have the Disability Rights California logo. It's a pleasure to be able to talk to you about legal developments and how to prepare to do right by your employees with disabilities without running into legal problems.
So the specific topic that I picked for today is COVID, which is moving faster than the speed of lawsuits. I thought it would be helpful to talk about what I see on the ground. We do direct services at Disability Rights California for people with disabilities, getting reasonable accommodations, and also seeing clients who are claiming that they're being discriminated against because of disabilities.
So in the time that it takes to go through a lawsuit, get a published opinion, COVID is changing very quickly. But we're seeing on the ground what's going on right now. So that's going to be the focus of this presentation.
DRC's mission and vision is to advocate, educate, investigate, and litigate to advance and protect the rights of Californians with disabilities. So this is going to be a disability rights and employee slanted presentation I guess you would say. But you're attending a presentation entitled Accessibility, then I assume that you're OK with that slant. But I'm being upfront with my bias here.
So COVID is not just a problem for the infected and the immunosuppressed is the first point that I want to make. A lot of people when they think of COVID and disability, it's pretty obvious that if you were infected or you have long haul COVID, that might be a disability issue. And if you're immunosuppressed and you're at high risk for COVID and you also have issues with vaccination that those are hot topics with COVID.
But we also see a lot of other disabilities that are problematic in the age of COVID pandemic. So there's more anxiety and depression in the general population, as studies show, since the pandemic has been occurring, which isn't surprising when you think about it. Honestly, no matter what number of employees you think you have with disabilities, I can guarantee you that that number is higher than what you think. Because there are always people with invisible disabilities who choose not to disclose for various reasons.
But now we're seeing a lot of people that are not even aware necessarily themselves that they have a disability. They are affected in ways that they know they're struggling. But they don't really tag it as a disability or seek treatment. So keep an eye out for that in this age of COVID as anxiety and depression are on the rise. But with people that have not had that diagnosis in the past and may not be as aware of what that means as far as a disabling condition or what their rights might be as a person with disabilities because they've never identified as such and may still not do so.
For those that had anxiety or depression disorders before COVID, those are generally worse now. COVID has not been kind to those with anxiety and depression. But it also has affected people with other diagnoses like PTSD, obsessive compulsive disorder, and other diagnoses and issues.
It's also been very difficult for people, the deaf and hard of hearing community, with the use of masks, for example, that have affected the ability to read lips. I, myself, have post traumatic stress disorder. And even though I'm functioning just fine, I have been working all through the pandemic, my brain can go from everything's fine to everybody's going to die faster than a Ferrari goes from 0 to 60.
So it has been very important to me that-- for example, I work for Disability Rights California that has allowed work from home conditions. And for those who are in our offices for whatever reason, they have been very careful about sanitation, about social distancing, masking, and whatever other protections they can provide so that their employees are safe. It's not always the ones that you think of.
Also the uncertainty for both employers and employees has been difficult to deal with. I think in a lot of ways psychologically speaking, even bad news is easier to deal with than just not knowing. And as COVID has drawn on so much longer than anybody expected it to go, and then you see an end in sight, you're thinking, OK, we have a vaccination now. We have this, we have that.
And then another surge hits. New things happen. And we're back to higher rates, overflowing hospital situations. It can be very difficult to keep up with that from the employer and the employee side, just the toll that takes individually and as an organization.
The specific legal battle of the day in the COVID war that is the hot topic of today is vaccination mandates. This is especially pertinent given President Biden's efforts to mandate vaccination for those who will be working for federal employees or people with federal contracts. There are different cities, New York City, other cities, that are looking at requiring vaccination, vaccination passports to do certain things.
Schools, health care providers are looking at providing vaccinations. Some of them are already requiring vaccinations for their employees. And there are a lot of cases that have been going through the courts already.
If you want a good list of them-- I'm not going to go through each one of them individually, because there's not time for that. But if you want a list of them, you can go to the Network for Public Health Law link that's here in the PowerPoint. And if you want to search for it, it's in that Order for Public Health Law COVID-19 vaccination court decisions.
So there is strong legal precedent to uphold vaccine mandates going all the way back to 1905. But there's a lot of concern that with the current Supreme Court make up, the legal support for vaccination mandates may well change. It's not certain at all what this Supreme Court would do with a case regarding efforts to mandate vaccinations. On the other hand, it is a near certainty that eventually a case will be appealed up to the US Supreme Court level because this is such a hot topic and a politically charged topic.
So what do you do in the meantime if you have employees with disabilities? Well, that's very complicated. The whole idea of vaccination mandates is complicated for people with disabilities. People with disabilities are often at higher risk of catching COVID-19. And they're also at risk of worse outcomes if they do catch it.
But the same people, for example the immunocompromised who are most at risk and need the most protection from getting COVID, are often the ones who are medically unable to be vaccinated. So if you are looking at the vaccination mandate issue, you'll see in the disability community, there are some in the disability community that will say, yes, we are 100% for vaccination mandates. And depending on what disabilities are their focus, they may not see these problems.
And others are saying, wait, wait, wait. If you have a strict vaccination mandate, then I'm going to be out of a job because I can't be vaccinated. So it's not as cut and dry as thinking, well, people with disabilities want that protection in their workplace, that we want vaccine mandates.
At the same time, there are also people with disabilities are individuals. So they have other reasons for either wanting to be vaccinated or not wanting to be vaccinated. But even just from a medical standpoint, it's complicated. Testing and work from home or other alternatives are needed. But those can also be complicated.
Vaccination mandates alone will not protect all employees with disabilities, even if they are upheld by the courts, especially not when even the vaccinated are able to contract and spread COVID-19. This is especially problematic because people who are vaccinated tend to-- as you've seen, there was a big push to have people vaccinated in saying if you are vaccinated, you don't have to wear a mask. You can fly. You can do different things if you're vaccinated.
And then the whole idea behind the vaccination passports, that idea that it will give you more freedom to be living your life around other people, doing what you did pre-COVID. The problem is, though, that if the people who are vaccinated are not as vigilant about catching COVID but they still can catch COVID and they tend to have milder cases, then they could potentially even be at higher risk of spreading it to their coworkers. Because the idea that they can get COVID but they're not being as protective in other ways, because they think the vaccination is protecting them. But what it is essentially doing is just protecting them from severe cases.
That can be problematic for people with disabilities, too, and provide a lot of anxiety. for people with mental health disabilities, we're seeing a lot of people that even though they're vaccinated and their workplace has a high vaccination rate or a high compliance rate with PPE requirements, for example, they still have a really hard time facing the idea of going back to work.
Because it's not enough for them. They still have heightened anxiety, especially if they have people at home that are high risk or that cannot be vaccinated like young children who cannot be vaccinated, immunocompromised family members that live with them. So it gets very complicated.
- So one of the things that we've seen is that you can have vaccine mandates with testing alternatives. You can kind of get around the idea that not everybody can be vaccinated or wants to be vaccinated. But you want to protect people from working with coworkers that have COVID and contract to get themselves.
And this is, for example, the Biden alternative. It's also happening in a lot of schools. You see it in a lot of the college campuses here in California. That is not a perfect solution either, though, because there is a lag time to get test results back. So in the day or two even in the best case scenario where it takes you to get the results back, you could be spreading COVID if you don't realize you're positive.
The more rapid testing tends to be less accurate. I don't think that's caught up with the accuracy of the longer-- the ones that actually go through lab results. But that can be problematic, because most of the tests are taking a couple days to really get good results.
The other problem is lack of resources for those who do test positive to be able to quarantine. That can be problematic. We saw a lot of that with the first wave of COVID, where essential workers in different areas where they did not have sick leave. They relied on their income to support their families, felt a lot of pressure to keep working even though they might have contracted COVID.
So even if they had symptoms, if you're only testing every four days or once a week, you could have somebody who has had symptoms. But they're not staying at home or asking for a test early, because they really need that income. And then by the time you're tested and get the test results back, they could have infected a lot of people. And that's problematic. So the more that we have resources for people to be able to stay home and quarantine and not pass around COVID, the better. But that has not been happening to the extent that it needs do to solve the problem.
Another problem that we're seeing a lot of is that when they have the testing alternative to vaccination, what they're doing is since they say you have to be tested every so many days, a lot of times they're setting up testing sites. So for example, we have seen cases where like a college, a university campus will say that if you are not vaccinated, then you need to be tested every four days.
And the way that you do that, they don't want to gather everybody's information individually. So the way they do that is they have it in an auditorium or whatever they have testing going on. Because of the political climate that has grown up around, started with the mask mandates and now even continue at a more volatile rate with the vaccine mandates, it has been very problematic to try to introduce the problems that creates for people with disabilities.
So if you are someone who's immunocompromised-- so we have people that come to us and say, I can't be vaccinated because I'm immunocompromised. But I work at this university, or attend this university, or both sometimes where I have to be vaccinated or I have to go be tested. But the testing site is a room full of people that have not been vaccinated. And many of them do not believe COVID is a problem.
So I'm really worried that they have not been taking other precautions. And I am at a high risk of catching COVID as I stand around in line with them for however long it takes to get our testing done. But the political climate, and I see this on my social media feed, you'll see this around, is to be very polarized.
So basically what people are thinking is, well, those are rooms full of anti-vaxxers who deserve to be exposed because they've chosen it for themselves versus the holier than thou, I guess, responsible, vaccinated, mask wearing citizens. And whatever you're feeling about vaccination and non-vaccination, that does not leave room for the people who are immunocompromised or for other reasons cannot be vaccinated.
They want to be, but they cannot be. So if you're taking this attitude politically that we don't care what's going on in these testing centers, and that they're all crammed in there just waiting in line to be tested because they deserve that they've chosen it, and not realizing that you're putting people who have not chosen that at a higher risk, then you're creating a problem that people are not even paying attention to, never mind looking at serious solutions for. So when we get those cases, we're looking at addressing that in various creative ways to try to protect the people with the disabilities from that situation.
Just to kind of go over kind of the depressing side of it, to summarize the depressing side, vaccination mandates are complicated for people with disabilities. The same person can be at the same time the most in need of high vaccination levels and the most desirous of having everybody around them be forced to be vaccinated to protect them because they're immunocompromised. And at the same time be unable to be vaccinated themselves and not be able to comply with the vaccine mandate.
I don't think anybody at this point thinks that we are going to reach herd immunity for COVID-19. It is mutating faster than we can keep up with it. There are already too many people that are not being vaccinated for their own reasons that we're not reaching the levels of vaccination or exposure that we need for herd immunity. And there are entire countries that don't even have access to the vaccination.
So it will continue to mutate and spread through those countries. And in the world that we live in now, we cannot just shut off and call that other people's problems. We shouldn't do that anyway, but we can't because it will come here. So it's going to be an ongoing complicated issue for the foreseeable future.
Mask mandates, you know right now I am living in Los Angeles. And we went back to-- we were not-- if you were vaccinated, you did not have to wear a mask. But then we went back to masks are mandated indoors even if you're vaccinated. Because we had a surge of the Delta variant. And we had break out infections of people who were vaccinated who are getting the Delta variant and could pass it along to other people.
That has not been as complicated as vaccines for people with disabilities. But it still had its complications, and it still has its political complication. And there's still a lot of issues with people who have discomfort wearing a mask, people with anxiety disorders that have problems with it, people with PTSD that have had mask related, or gagging related, or different things like that happen as part of the event that caused their trauma that are triggered by having the cloth over their face.
There are people who cannot read-- need to read lips that cannot read lips. Although there are also masks with cutouts so you can read lips. But those are not necessarily what customers are wearing when they come in when they're mandated to be masked when they come into your place of business.
So these are all issues that come up that are not necessarily on everybody's radar. People have their opinions about masks, vaccines, whatever. They have their knowledge or lack of knowledge of specific disabilities or specific issues around disabilities.
But the broad knowledge and broad understanding of the different ways that this impacts people of different disabilities is really lacking out there in the public, and in the employment world, and in the political world. And I think it's our duty as people who are trying to fight for more accessibility to help educate, as well as problem solve. Because that just is so needed if we're going to come up with any solutions.
We already talked about the political climate with people with disabilities. People with disabilities are kind of invisible in the political climate anyway sometimes, unless they actually go out there and put their bodies on the line like they did over Medicaid expansion things and over getting the ADA. But living their lives, a lot of people can tend to just forget they're there.
And in fact, with the DEI movement diversity, equity, and inclusion movement, actually a lot of places are not including the disability in their DEI efforts. Many are, but many are not. They're not even seeing disability as something that needs to be addressed when addressing diversity, equity, and inclusion issues.
In fact, what we are seeing is some cases where DEI is actually being weaponized against people with disabilities. So we have a local municipal entity department that has both office and field work. And they were work from home for a long time. Or if you were in field work, they had precautions, whatever. They were slowed down and mostly from home.
Then as things have opened up, they decided that from an equity standpoint that they were going to give everybody the same number of days of work from home to do their office work. Because that was equitable, right? Well, that's equal, but it's not exactly equitable. Because there are people with disabilities who cannot be out there and doing field work where they are exposed to large groups of people.
And now that we're beyond the point of the shutdowns-- or even if you're doing field work, for example, you might be in the field. But there won't be a lot of people out there and around because they were quarantining. Now they're in a position where they are not feeling like they can be safe. And their doctors are backing up that they should not be out there doing that, that they should be full time work from home.
We are actually getting arguments from the Equity Committee saying, oh no, no, no, no, we can't do that, because we can't treat them differently. That should not be happening. Because reasonable accommodations are set up specifically to exclude people with disabilities from the norms if they need a reasonable accommodation that's related to their disability.
So that gets us to our hopeful summary. Voluntary vaccination, masking, testing, all of those things, is not treated the same legally as mandatory. So you can do voluntarily whatever you want. I think that is going to be politically problematic in some areas. Where you are operating is going to have a large impact on what you can do voluntarily or not because of the political climate.
But even if mandatory vaccination, testing, or masking, or any other laws are shut down tomorrow by the Supreme Court, can still do it voluntarily. You can try to get as many employees vaccinated as possible with both carrots and sticks. That gives you more flexibility to be able to continue your program, no matter what courts do as time goes by.
Also there's the whole reasonable accommodations process under the ADA and state laws that can provide accommodations for those with disabilities. And that's where we're getting a lot of work done to craft creative problem solving solutions to allow people with disabilities to continue to work in their jobs safely. This can be difficult. There are a lot of people out there that don't understand reasonable accommodations. There are a lot of HR departments that see it as a very box checking, not a very creative process. That doesn't work in the world of COVID.
So if you're thinking it's either work from home or not work from home, or it's one thing or the other, there will be a lot of problems that you can't solve. But if you are thinking creatively about what can we do with PPE? What can we do with different plexi-glass barriers? What can we do with air purifiers? What can we do with-- whether they are public access or non-public access? Or whether they're-- maybe you can't have every employee in your place vaccinated. But maybe you can put them in a section where they only work around people that are vaccinated or whatever the case may be.
Don't just look at it as, well, whatever accommodation they ask for, work from home or whatever it is, if we can't make that happen, then they just have to go. Start thinking about the different ways that people have found already to survive in a world where COVID is a fact of life. And see how you can apply those things to your employees and your employment work spaces to allow people to continue working, and to keep your valuable employees, and to also recruit valuable employees with disabilities.
Employment attorneys who advise employers may often tend to give advice on what are the minimum legal requirements. But remember, you're the client. You make the decision. You can always direct your legal counsel to advise you on how best to retain and keep your employees with disabilities safe.
And make it clear that your commitment to accessibility is at least as important to you as cost savings, if not more important. And you want a more comprehensive holistic approach to the legal landscape, to what kind of accommodations you look for, to how difficult you make it to get accommodations, to how you decide who can work from home or who can't, all these different issues. So you are in the driver's seat as a client to tell them what your ultimate goals are. They just give you the legal advice to get to those goals.
Also remember that going above what is legally required currently can actually be cost saving. So California has-- I think most people have heard of this. California tends to be pretty California-centric. So maybe you haven't heard of it, and we just assume everybody has. But we've had ongoing wars about whether certain Uber and Lyft drivers should be classified as independent contractors or employees.
As different things have gone back and forth in the courts, and propositions, and challenges to propositions, there have been a lot of cases where people that were trying to follow the law, same things with wage and hour laws of different kinds. People who were trying to just exactly get everything they could out of the employee without crossing that line into what was illegal can find themselves, after a court decision, interpreting things differently than they or their attorneys did, can find themselves defendants in a class action lawsuit of tomorrow.
So you can be saving costs today by trying to do the bare minimum, but actually costing yourself in the future because you guessed wrong. You could be in a class action lawsuit and causing those problems. But beyond that, like I said, if we're here at an accessibility conference and we are really committed to understanding the value that people with disabilities bring to our workplaces-- and of course, I'm biased in that, because I'm a person with disabilities myself. I think it actually really adds to what I bring to my work.
And you know, people with disabilities are not charity cases that you're just giving a job out of charity. They are qualified, hardworking employees that are resilient and used to making things happen even when they're difficult in their entire lives, their entire experience with disabilities. And they bring that to work with them. So if you're committed to that and that's what you want for your workforce, then you can craft whatever you want. And don't be limited by what is the bare minimum that's required by the law.
Let's start looking at the law as the floor and not the ceiling. Let's not be tied to what do we think the Supreme Court is going to say we need to do or whatever. Let's talk about how we can make things good for our employees no matter what the courts say. That's what I hope will happen.
And if you have any questions, or comments, or interest in any collaborations, my email is paula.tobler@dis abilityrightsca.org. And also LinkedIn messages or connections are always welcome. So thank you for your time. And please enjoy the rest of the presentations. And let's all work for greater accessibility in the workplace.
Live Q&A
Transcript for Live Q&A
(Kevin McDaniel) Thank you so much, Paula. We really appreciate what a great, great presentation in one, thanks to you for taking on that topic. I we were watching the presentation and I can see you trying to join as we were watching the presentation.
We were following along in the text and we were like, OK, because we have questions ourselves over at Accessibility.com about this topic because it's something that is coming up much more frequently. You know, the Department of Justice keeps, you know, they've issued several, several guidances or clarifications, but it's not something that's going to go away.
You know, it's it's something that continues. So I really appreciate your time and thank you for joining me for the Q&A too, by the way. Thank you again. Welcome, too. We really appreciate, really appreciate you doing this. I have a lot of vaccine questions.
So, you know, the first one is in and I'm so sorry if you can bear with me because I had been organized here and then our our session, our moderator panel here reorganized. But the first...
(Paula Tobler) I'll just say you and everybody else in the country probably ask for the vaccine question. So...
(Kevin) It's a hot topic, to say the least. It is, and thank you. Thank you to Disability Rights California as well for allowing first for allowing you to spend your time with us today. And I just would like to thank them for the work they do.
I've done some work with Disability Rights Florida here in Colorado now and the work they do a lot of folks aren't really aware of their role and of the work they do in the community. So I thank you for your time.
I know how busy you guys are. So I have this first question is in this may be a tough one to tackle, but I feel like if I ask you at a later point, it's it's kind of backward.
So the first question here is how are mandates legal? It says there's no caveat for immunocompromised. They cannot get the vaccine and there is no testing option. And how can we deal with that? If you.
(Paula) The short answer to how mandates are legal is that the Supreme Court said so about 100 or some odd years ago.
So it's a public health issue. So basically, that determination has been made through legal precedent that you can mandate vaccination vaccinations, which is why they were allowed to mandate them for schools. All of us had our vaccination records.
I actually have a smallpox vaccination scar. I was one of the last classes to have smallpox, and then it was eradicated so they can be legal. There are a lot of challenges, however, because a lot of non-lawyers think the Supreme Court.
I mean it. It does have stability, but changes in membership can change what the law is. It's what precedent means. Can can be kind of a wiggle area and not as straightforward as you might want to believe. So I think that what you're finding is, though, that when people think of a vaccine mandate, they are thinking that there are no carve outs. And if a vaccine mandate is written with no carve outs, that is when you start relying on other laws such as the ADA or in California, we have our own FEHA Fair Employment and Housing Act that create carve outs for people with disabilities who are in the workplace or in housing areas like that.
So. For example, you can have other laws that apply to a workplace and you can ask for a reasonable accommodation because you have a disability. So that's basically where we're working with it is we're saying that even if there's a vaccine mandate.
There have to be carve outs. Most I think most of the cases are acknowledging or most of the people that are imposing mandates are also acknowledging religious carve outs, but most of them are also acknowledging that there are medical carve outs.
There are people who cannot be vaccinated or their doctors are saying that they should not be vaccinated. And that makes sense because the whole reason to have vaccine mandates is to build up herd immunity, to protect those people who could not be vaccinated.
So whether it's young children or people who are immunocompromised, so you're going to have, you know, whatever is done with, whether the Supreme Court continues to say vaccine mandates are valid or that they are not valid, you're going to have these continuing fights in the disability world.
I think your strongest prongs of action are number one to make sure you're politically involved. I know that Disability Rights California has been on top of that with our legislative unit making sure that the laws are passing that have to do with this, whether it's, you know, voting rights or vaccine mandates, or whatever it is that they understand that the blanket rules that they put in for a reason that they think will help all people, including people with disabilities. We point out to them where it can hurt certain people with disabilities and try to get carve outs for that.
When the law as a whole does not provide the carve out, then we are fighting for reasonable accommodations for employees who are affected by it because a reasonable accommodation by definition takes a person with a disability and employer with a disability, an employee with a disability, for example, outside the policy.
So if the policy is. Because honestly, that's where the work plays out in the workplace, whatever the law is. It's a policy within that workplace then that you must be vaccinated in order to work your. Or tested if they have a testing option.
Then if that does not work for your specific disability and your doctor backs you up on that, that because of your disability, that you need an accommodation that allows you to be unvaccinated and have different arrangements as far as testing or maybe work from home, so you'd avoid the whole issue.
So that is a reasonable accommodation. Bound to handle whatever happens on the ground that that's always an option, because that is well-established as a way to get around policies for people with disabilities.
(Kevin) So the next question I'm going to add on a little bit, I hope that the person who asked it doesn't mind the next question, and I just want to add one piece to it because I feel like there should be not devil's advocate, but the consideration. I'd love to hear your thoughts on it.
So the second question is how how can a vaccine mandate be forced on 100% work from home employees with no contents, no contact or clients or coworkers, and they have a breath? These are federal contractors and actually not the chance of that because I have at home, but I don't want to flow the question.
(Paula) If it is the law and there is no carve out for being work from home, then then that is the law and it applies to all employees.
So. You can say that it should not apply to me because I'm not in that stream of people that you're worried about. But having that logical argument does not get you out of a law that is a blanket law.
So there are a lot of laws that are out there that don't really apply to to different people or that actually might be harmful to different people, but they still apply. You still have to follow that law unless you have a carve out, which is widely reasonable accommodation Carve out is important. If you have a situation where you have that mandate and you have the option for testing or something like that in your work from home. But we're seeing a lot of people ask for, OK, then give me work from home testing because there are work.
There are are there are in-home testing options. They can send the testing kits to your home, you mail them in, the results come back to you. In fact, one of my daughters works at a COVID testing facility right now, and they have a lot of in-home testing kits that are coming in all the time, and they just email the results to whoever they need to email the results to. She is tested daily and they send an email every day like can't come into work because you tested positive or whatever the situation is. So there are ways to.
To make it easy for you, for you to stay at home, but you there's not necessarily a way for you to say, Oh, just because I work from home, then I'm excepted from this mandate if the mandate does not except you.
I personally think. That it's unlikely that they are going to carve out exceptions for people who work from home because what that creates is more uncertainty because you might be there are a lot of people who are working from home today and a lot of businesses that are saying we can.
We are going to continue to let people work from home and then they're changing their minds on a daily basis. So if they say, OK, you don't have to do this if you work from home, but tomorrow your employer could say you're back at the office and what did they do about the fact that you haven't been vaccinated and they haven't tested you in heaven knows how long. So it creates lack of flexibility. And honestly, the other reason that they're having these work mandates is.
Legally, it's easier to have a mandate, so if President Biden wants to have a mandate that they want everybody vaccinated, they want people vaccinated, working, not working, they want people
vaccinated because they want to get herd immunity. It's a public health issue. It is easier to say by executive order, it's easier to pass, it's easier to do by saying if you work in a with a federal contract and we can enforce these rules upon you, just like you can force wage and hour laws or things like that on federal contractors, then it is to say everybody in the country must be vaccinated.
So even though they're doing it as a work requirement for federal contractors in the back of their mind, what they're really looking for is to get as many people out on the streets that are living in America, going to restaurants when they're not working, whether they're working from home or in an office to be vaccinated. So there is not a lot of political motivation for them to have carve outs for people that work from home. So you can't expect I I don't say you can't.
I would not expect these laws to be giving carve outs for people that work from home. But if that's your situation and you have a disability related reason for not being able to be vaccinated, then go ahead and get your doctor's note and get get a reasonable accommodation that you can't be vaccinated.
If you are doing a testing option, then go ahead and get your reasonable accommodations to be tested at home so that you're not standing in lines at vaccination or at testing centers with a lot of other people that have not been vaccinated and are at higher risk.
(Kevin) So you talked about the reasonable accommodation piece. It was a great segue way because my next question was, let's say the flip side of this you're an employer and you grant reasonable accommodation. They do not have to participate in the mandate.
This person now comes to work, has COVID, other employees get COVID. There's harm or you know what to say? Now there's a safety issue where someone actually contracts COVID, get seriously ill or passes away. What kind of protections are there for the employer?
Because we don't know. The reason for that question is because I do think it's important that employers understand their responsibilities in adhering to a reasonable accommodation process. I don't want fear on either side to become the motivator for not granting or granting.
Can you talk a little bit about what kind of protections employer has if they grant a reasonable accommodation to someone in? Let's assume they got hurt, or if they if someone did come in and contract COVID after the fact.
(Paula) Well, the reasonable accommodation process that the employer can always say that they cannot, they're not granting a reasonable accommodation because of an undue hardship. So that is going to depend on what the landscape is for employer liability in general.
So it's like there are movements to make it workers comp only. For example, if there is, sometimes they can say there's no liability at all because they can't prove that these people got it at work. There has been a lot of problem.
There have been a lot of problems with outbreaks at workplaces where nothing has been done. So whatever the law ends up being on the employer's responsibility for outbreaks of COVID in their workplace should be taken into account when you're looking at reasonable accommodations.
So let's say you're saying you're going to give somebody an accommodation that they do not have to be vaccinated. And let's say everybody else in your place is going to be vaccinated. Then you are going to have to look at whether that is enough of a reasonable accommodation or whether you also want them to be working in their own area or you want them to. Maybe they have to wear a mask, even if other people do not. Maybe they have to be, you know, have more PPE protections, which can vary from anything from, you know, being in your own office to having air purifiers so that you're not spreading it through the vents, masking different things like that.
Or they could say that you work from home or they can say that we cannot accommodate that because of the risk of infection. If you have a workplace where people have to work really close together and this particular employee would have to work so close together with other people.
So you could say, for example, like we'll take an example of the meatpacking plants where things got really bad because people were so close together, there wasn't a vaccine at the time. Now there is a vaccine, let's say they're saying everybody has to be vaccinated because we work so close together in this tight space that it's too much of a risk to employees' safety to have anybody that's unvaccinated here. Somebody says I have a disability so I can't be vaccinated. Testing options don't work because we wouldn't get the results back fast enough to make sure there's not an outbreak.
The response from the employer might be that would be an undue hardship because given the work situation. We can't risk that outbreak, on the other hand, it's hard to say it's an undue hardship 100% because even people are vaccinated and still get COVID and can still pass along COVID.
So, you know, that is that can lead you to a disability discrimination suit because you're saying these other people that can pass along COVID even though they're vaccinated, are allowed to work in the setting. And you're saying this person cannot because they have a disability that exempts from vaccination.
So if you want to and I used to be a risk management attorney for a public entity, so we would do these calculations all the time. But I think the main that's why the main theme of my presentation was it's complicated.
This is not a box checking issue. You have to look at the totality of the circumstances and think, what can we do or what can we not do to balance employee safety? And and then balance that with wanting to support employees with disabilities.
(Kevin) Well, I really appreciate Paula, and I see Alycia there, Alycia, if you don't mind, I want I want to just first thank you, Paula, for your time. And I want to advocate that everyone I encourage everyone to check out their disability rights organization in their state.
And Paula, how can they reach disability rights California for folks in California if they want more information about this.
(Paula) The easiest place is our website, so you can just Google disability rights California. It's also disabilityrightsca.org. If you want to remember it and we have an 800 intake line, so you can call and ask what kinds of different things we do. We do a lot of different things. So we work with regional center clients.
We work with clients that are in mental health institutions and different places where we have done a lot of class action work and other work related to COVID because we have these people that are against their will in tightly packed places where COVID has been a problem. But we also do a lot of individual work with people with disabilities, including, for example, individual employees calling. And I run the group where if they called in and needed accommodations, we would be doing that analysis for them and seeing what we could work out with their employer.
And if it cannot be worked out with the employer, then we can refer them to sources to get rehabilitation, job rehabilitation and training and services so that they can move on to a different career. Use their skills to do something because, for example, teachers and a lot of people in this world are never going to be able to go back. You can't be vaccinated. A lot of teachers are not going to be able to be teachers in a post-COVID world. So if but if you figure that out sooner rather than later and start hooking into services, that's why we treat the whole person.
It's not just a reasonable accommodation issue that we're just narrowly focusing on. But if we're already seeing this is not going to be something whatever happens with your reasonable accommodation fight right now. Long term, this is not going to be good for you.
How can we direct you to other resources for people with disabilities to where you can continue to do things that are meaningful in your employment life and safe for your health? So that's what we do.
(Kevin) Well, thank you so much, Paula.
I really appreciate it. Thank you for your time and thanks again to Disability Rights California.
(Paula) Reach out anytime. Thank you.
(Kevin) Thank you so much.
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