Businesses Are Reopening. If You’re Older Or sick, What Happens To Your Job?

By Laurence Darmiento Los Angeles Times

WWR Article Summary (tl;dr) As Laurence Darmiento reports, "for workers especially vulnerable to complications from COVID-19, a return to work can feel like a death sentence. That's not a small group."

Los Angeles

There's no social distancing for Venda Ripke at work. The 41-year-old teacher often gets face-to-face with the young students in her special-education classes at Newcastle Elementary School.

Students with learning disorders, autism and other conditions benefit, she says, from the close interaction. And that's a problem in the age of coronavirus, especially since Ripke has Type 1 diabetes and other medical ailments.

"I am a disabled person and I work with students who are disabled," says Ripke, who hasn't taught at the Reseda school since the Los Angeles Unified School District sent students home in March. "I feel like I can't even walk outside of my home. Imagine if I were being asked to return to work."

With some 39 million Americans filing jobless claims since the pandemic broke out and fears growing of another Great Depression, getting workplaces open has become a priority. That's a tricky proposition as the number of coronavirus cases and deaths mount, even if the rate of transmission slows in some places. But for workers especially vulnerable to complications from COVID-19, a return to work can feel like a death sentence. That's not a small group.

Some 41 million Americans ages 18 to 64 are at risk for serious complications from COVID-19 due to underlying conditions such as diabetes, uncontrolled asthma and heart disease, according to a Kaiser Family Foundation analysis. Also at risk are Americans 65 and older, about 10.4 million of whom remain in the workforce, an age group that accounts for 80% of U.S. COVID deaths.

Already there's evidence vulnerable communities are paying a price, with African Americans, Latinos and other minorities dying at higher rates than their white and Asian counterparts, according to a Times analysis. Several factors account for the disparity, among them the fact such groups are more likely to work consumer-facing jobs and have underlying health conditions, such as diabetes and high blood pressure.

"COVID has really brought to the forefront a sense of vulnerability that is much bigger than we thought," said Eileen McNeely, executive director of the Harvard T.H. Chan School of Public Health's SHINE program, which researches how to develop sustainable and healthful workplaces. "We've all now started to pay attention to who's dying at greater rates."

While federal law provides special protections for workers who have disabilities or are older, ultimately they can be recalled to the workplace, even if it can't be made 100% safe. And should employers try to prevent certain employees from returning to their jobs, they could face discrimination claims from older workers and disabled workers.

The complications of returning millions to the workplace has prompted a flurry of activity on Capitol Hill. The U.S. Chamber of Commerce is seeking broad liability protections for employers in case workers or customers get sick, while the AFL-CIO filed a lawsuit Monday demanding the federal Occupational Safety and Health Administration issue tough emergency standards to better protect workers.

In California, Gov. Gavin Newsom signed a temporary executive order creating a presumption that if a worker gets sick it was contracted on the job, funneling such cases into the workers compensation system.

However, the issues involving vulnerable workers are even more complex. Workers who are diabetic or asthmatic or have other conditions that are considered disabilities are offered special protections by the Americans with Disabilities Act, which requires employers to provide so-called "reasonable accommodations" as needed. The Age Discrimination in Employment Act offers workers older than 40 protections against discrimination on the basis of their age.

Questions linger about whether and how such protections will shield workers who are older or have medical conditions in the time of the coronavirus.

"It's definitely a minefield for employers," said Walter Stella, a labor and employment attorney at Cozen O'Connor, which represents employers. "The traditional reasonable accommodation analysis requires employers to accommodate disabled employees so that they can continue to perform the essential functions of their jobs. The focus of the law is not to give employees a reasonable accommodation so that they don't get the coronavirus."

That legal analysis rubs up against the demands of employee advocates who say that providing a safe workplace is the fundamental duty of employers amid the pandemic. Practically speaking, though, Stella agrees that driving the interactions between employers and employees will be the issue of workplace safety as more businesses open with no proven therapeutics for COVID-19 and a vaccine possibly a year or more off.

In some places, a vulnerable worker may feel protected simply if social distancing, masks and other now-common safety practices are in place for all workers. That may not be adequate, though, elsewhere or in jobs that typically require close interpersonal interaction.

"It's kind of getting into the weeds, if you will, of looking at that workplace, looking at the jobs to figure out an accommodation," said Nellie Brown, a certified industrial hygienist and director Workplace Health and Safety Programs for the Worker Institute at Cornell's School of Industrial and Labor Relations.

Making an accommodation is not always difficult. A vulnerable worker could continue to telecommute while others return to the workplace, or could be given an office with a closed door. In a factory, such a worker could be put at the end of the assembly line.

But those are simple examples and they may not be adequate. Among the most notable COVID-19 outbreaks have been meatpacking plants, where employees work in confined spaces on fast assembly lines, prompting complaints by labor of inadequate safety equipment and forcing temporary shutdowns.

And there are the situations facing workers like Ripke, who can't imagine how she could properly conduct her job either remotely or using a mask while practicing social distancing. "It's such a hands-on and close and personal position that I'm in. I'm working with small children. Kindergarten through fifth grade. They don't understand the hand-washing and the mask on the face," she said.

In response to Ripke's concerns, a district spokesperson said LAUSD is working with various agencies with a goal to "provide employees, including those with COVID-19 vulnerabilities, every opportunity possible to continue to work."

There are other options for workers like Ripke, but they are not necessarily ideal. One would be using personal leave time, something Ripke fears she may be forced to do. But with the pandemic not expected to vanish for a long time that would be only a temporary solution.

Employers also may assign such workers to safer jobs. While that's a possibility in large corporations or school districts, it may not be an option at small businesses, where a worker could just be be out of luck.

"At some point it just may be that the person is eligible for retirement or disability retirement but that's it. The employer would have fulfilled its duties under the ADA. Employers do not have to indefinitely keep anybody on leave," said Sharon Rennert, senior attorney advisor in the EEOC's ADA division. "Basically it's going to be termination."

Or workers might just leave or retire of their own accord whether vulnerable or not, something that employers in essential businesses where interaction with public is a core part of their job have already experienced.

"I know we have had some associates that have not come back to work and they probably just do that out of self-preservation," said John Votava, director of corporate affairs at Ralphs, the supermarket chain, which has remained open throughout the pandemic.

Departing the workplace, however, is unlikely to be an option desired by most older or medically vulnerable workers, who either need the money or enjoy their jobs.

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