High-risk employees include any employees over 65 years of age.

High-risk employees also include employees who have conditions the Center for Disease Control (CDC) has found make them at high-risk for COVID-19. CDC website

This includes employees with any of the following medical conditions: liver disease, chronic kidney disease undergoing dialysis, diabetes, severe obesity (body mass index measuring 40 or more), serious heart conditions, chronic lung disease, or asthma that is moderate or severe.

High-risk employees are also those who are immunocompromised. According to the CDC, many conditions can cause an employee to be immunocompromised, so talk to your doctor about whether you are immunocompromised. The CDC’s current website includes the following as examples of conditions that cause people to be immunocompromised: smoking, cancer treatments, bone marrow and or organ transplants, HIV or AIDS that is not well controlled, and long term use of medications that weaken the immune system.

If you are high-risk, be sure to request a reasonable accommodation from your employer. Your employer is obligated to engage in an interactive process with you to determine whether there is a reasonable accommodation for you. Types of reasonable accommodations, depending upon your job and other factors, may include working from home, eliminating job functions that are not essential, time off, or a flexible work schedule. The EEOC specifically urges employers and employees to look for creative and flexible solutions that permit you to do your job safely.

An employer cannot retaliate against you or terminate your employment because you ask for a reasonable accommodation because you are a high-risk employee. If your employer does, reach out to Siegel LeWitter Malkani for advice and be safe!

In this case, Abercrombie refused to hire a young Muslim woman named Samantha Elauf to work in one of its retail clothing stores because Ms. Elauf wore a headscarf. Abercrombie suspected that Ms. Elauf wore the headscarf in observance of her Muslim faith and simply did not want to accommodate the headscarf, claiming that it would violate the company’s “look policy” (which forbade employees from wearing “caps”). When the EEOC sued Abercrombie on behalf of Ms. Elauf for failing to make a reasonable accommodation for her religion, the company defended its actions by arguing that it did not “actually know” that the headscarf was a religious practice – it merely suspected that it was a religious practice. In other words, Abercrombie made the absurd argument that even though it actually believed the headscarf was a religious practice and the headscarf was indeed a religious practice, the company should nevertheless be allowed to discriminate against Ms. Elauf because Ms. Elauf did not specifically tell the company that the headscarf was a religious practice.

Luckily, the U.S. Supreme Court did not buy Abercrombie’s argument. The Court’s decision makes it clear that employers may not make employment decisions that are “motivated” by someone’s actual religious beliefs or practices, nor can it refuse to make reasonable accommodations for such religious practices, by simply claiming that the employee (or job applicant) never explicitly confirmed the company’s suspicions regarding their religious beliefs or practices.

Nevertheless, if you are an employee who needs a religious accommodation, you may be better off making your need clear to the employer so that the employer cannot later claim that it had no idea you needed an accommodation. If you need advice or information about requesting a religious accommodation, you may need to consult with an employment attorney.

June 11, 2015 Heather Conger

Ms. Smith worked as a literacy specialist at a school district. She had a back injury that limited her mobility. When her principal informed her that she was being assigned to teach kindergarten for the next academic year, she told the principal that her back injury prevented her from doing so. Thereinafter, Ms. Smith aggravated her back injury, and was off work totally until the end of the academic year. She applied for disability benefits and family leave.

Ms. Smith filed a claim for disability discrimination and failure to accommodate under the Americans With Disabilities Act (ADA). The employer-school district filed for summary judgment.

Ms. Smith explained that by filing for disability benefits and family leave, she meant she was temporarily disabled, not that she could never perform her literacy specialist job. The lower court granted summary judgment, holding that Ms. Smith could not both claim disability and claim she could do the job.

The Ninth Circuit reversed, noting that employees should receive a “wide latitude to overcome apparent conflicts between their disability applications and their ADA claim.”

So, BE CAUTIOUS! If you have or may have a disability or reasonable accommodation claim, and you need to fill out any paperwork (such as a disability application, workers compensation claim, personal injury case insurance forms, or family leave form) be careful what you say! They are watching you! If possible, consult with a lawyer beforehand!

Jody I. LeWitter December 23, 2013