Ask The Lawyer By: Daniel A. Gwinn, Esq. DISABILITY? SOME COURTS SAY YES

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QUESTION:  I’m an asthmatic. Before Covid, I, never really worried about it, but once the pandemic hit, my doctor told me I was at high risk of dying if I got the virus, and instructed me to stay home. That was no problem – like most of my co-workers, I was able to work remotely. Once I received the Pfizer vaccine, back in April, my doctor gave me the all clear, and I went back to work. Unfortunately, I read that the vaccine I got is no good after six months. I asked my boss if I can go back to working from home to avoid Covid exposure. She said no. I’m not comfortable risking exposure if I don’t have any protection.

ANSWER:     Let’s start with a clarification: The effectiveness of the Pfizer BioNTech vaccine in preventing Covid-19 infection drops to about 47 percent after six months, but its effectiveness at preventing hospitalization and death is still around 90 percent, even against the more contagious Delta variant. So, while your chance of getting the virus have gone up substantially since you were vaccinated, your chances of getting a bad case of Covid are slim. While both vaccinated and unvaccinated people can get the Delta variant of the virus and spread it, vaccinated people tend to be less contagious. And, according to the CDC, unvaccinated people are 11 times more likely to die from Covid than vaccinated people who contract the virus.

Assuming you’re still not comfortable about being back at in-person work, given your underlying condition, you might be able to increase your chances of avoiding Covid by getting a booster shot. Michigan currently follows CDC guidance and recommends a Pfizer booster, six months after full vaccination, for people age 65 and older, people age 50 through 64 with underlying medical conditions (like moderate to severe asthma) and anyone over the age of 18 who lives in a long-term care facility.

Boosters are allowed, in some cases for people age 18 through 49 who are at high risk of severe Covid-19 due to underlying medical conditions (once again, including moderate to severe asthma) and those age 18 to 64 who are at increased risk because of their occupation or “institutional setting,” including health care workers, firefighters, police, teachers, day care workers, food and agriculture workers, public transit workers, and grocery store workers, among others. (Curious about your booster eligibility? The Washington Post has a neat interactive tool for determining if you qualify under the CDC’s guidance.)

The state has not yet weighed in on boosters of the Moderna and Johnson & Johnson vaccines. But, given that the FDA recently approved the use of any of the vaccines as a booster, expect to hear more on this soon.

If you are not eligible for a booster, or your doctor still considers you to be at high risk of contracting a severe form of the virus, you might qualify for an accommodation under the Americans with Disabilities Act. Several courts have recently determined that an underlying condition may, in conjunction with the risk of contracting Covid, amount to a disability for purposes of the ADA — and other statutes. For example, in People’s v. Clinical Support Options, Inc., a 2020 case out of Massachusetts, the court ruled that in the context of the Covid-19 pandemic, a person with asthma could be viewed as disabled, while more recently, another Massachusetts court held that high blood pressure could be a disability, when combined with the risk of Covid.

Courts in Pennsylvania and New York, among others, have held that a person who has Covid could be viewed as disabled, depending on the severity of the illness and how the illness is viewed by their superiors (the ADA not only protects those with disabilities, it also protects people who are perceived as being disabled).

If you are viewed as disabled under the ADA, returning to remote work could be a reasonable accommodation – if you are still able to perform all the essential functions of your job, and if your remote work does not create any undue hardship for your employer. The fact that you successfully worked from home during the shutdown does not necessarily mean your employer can afford to let you continue to do so. Note that under the ADA, an employer may not take an adverse action – such as discharge or demotion – against you in retaliation for your request for an accommodation.

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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
[email protected]