SACRAMENTO COUNTY, Calif. — As the world takes steps to re-open, those who fall under the most "at-risk" category of contracting the coronavirus may be facing a dilemma.
Multiple ABC10 viewers have reached out, saying they're aged 65+ and that while they're healthy and willing to return to work in person, their employers are telling them to stay at home.
But not allowing employees who are 65 and older, which the Centers for Disease Control and Prevention deem more at risk of COVID-19, could actually be considered age discrimination.
"[Governor Gavin Newsom] came out and said, 'Listen, if you're 65-plus you should really stay at home.' I get that. It makes perfect sense and it's something that we're trying to protect the most vulnerable," said Employment Lawyer Jennifer Shaw. "The problem is from an employment law perspective, if you tell a 65-plus employee that says, 'I'm ready to work. I'm healthy. I'm fine.' That they cannot come to work because they're too old... that's called age discrimination."
As businesses and workplaces begin to reopen, Shaw said employers are facing a "catch-22" by trying to avoid liability and ensure safety by standing by federal and state enforcement like the Occupational Safety and Health Administration and their regulations ensuring employers are providing the safest possible work environment.
Yet, these employers are also trying to avoid liability from age discrimination and not allowing employees of certain ages to return to the workplace.
That's why she's encouraging employees who are experiencing age discrimination to push back by having open conversations with their employers as returning to work should be considered on a case by case basis, rather than just "check the box, you're 65+, you're not coming back."
"Sometimes the employer doesn't have the information they need so I think employees should push back," Shaw said. "If somebody is 65-plus and they want to go back to work, they should tell their employer, 'I'm fine. I'm healthy. I appreciate you looking out for me but I really want to go back to work.' Most employers hopefully are going to get that message."
But on the flip side, some employees who have compromised immune systems and also fall under the most "at-risk" category of coronavirus do not want to go back to work.
"You've got to listen to that as well as an employer," Shaw said.
That's the reality for Kyla Aquino Irving. She has had two kidney transplants, one from her mother and father, and has to take immunosuppressive medication.
This medicine protects her body from attacking her kidney as a "foreign object" but in order to do that dramatically decreases her immune system making her more susceptible to getting sick.
Contracting COVID-19 could keep her in the hospital for an incredibly long time, or could even be potentially deadly. That's why she has to take extra precautions in staying healthy and isn't comfortable returning to her workplace at United Way quite yet.
"In regards to returning to work, I don’t really feel comfortable without making sure there’s parameters in place, like policies in our office to wash your hands, keep social distance, wear a mask," said Irving.
Luckily, Irving said United Way is extremely understanding and gracious in keeping her safe. While she will continue to work from home, she knows others with compromised immune systems may not be able to do so.
That's why she urges them to visit the Job Accommodation Network.
"It has a great website that allows you to look up any condition, you can even put in compromised immune system and it'll show what the legal limits are for federal law and give you some guidance points for how you can tell your employer what different accommodations you could use or need to make work for you," said Irving.
While others also share the fear of returning to work, Shaw reiterates that you do need the approval of a physician to truly deem you unsafe from working in an office our work space outside the home.
“Just saying I’m afraid to go back to work is not enough," said Shaw. "But the employer can’t make the person come back to work.”
Shaw said options for employees not comfortable returning to a workplace are to file for unemployment. However, employees do not have a legal entitlement to remain off of work unless they are caring for someone who is ill related to COVID-19. This falls under new leave laws created by California during the pandemic, but leave laws aren't anything new.
"There are people who are pregnant who have a right to stay home. There are people who are taking care of a child who is ill that have a right to stay home," Shaw said. "So these new leave laws that we have had to sort of get used to because of COVID19, those layer on the other leave that other people already had and are entitled to. So the employer really has to have a brush when they’re looking at the right – does this person have an entitlement to not come back to work?"
As for if you're taking care of someone with a compromised immune system, but are healthy yourself, Shaw said if a physician or healthcare provider to the individual with the compromised immune system would like the caregiver to self-isolate in order to not expose the individual with the compromised immune system, they may be entitled to time off related to COVID-19.
As for Shaw's overall message, it's one of ensuring health and safety during this time to both employees and employers.
"I really want people to think about what is best for their health. I also want employers to think about what’s best for their employees," said Shaw. "Everyone is struggling, supporting the community and we do have to have a little grace – we maybe have to go a little farther than we have in the past in order to try and help and accommodate and make it work."
Follow the conversation on Facebook with Andie Judson.
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