Has COVID made the legal workplace more disability inclusive?
The coronavirus pandemic has created unique problems for disabled people, particularly those whose disabilities make exposure to the virus a particularly high risk.
Jermaine has a problem with his immune system – his blood doesn’t produce enough gamma globulins, so his immune system is depleted. It’s not Jermaine’s only disability but it’s the one with the most significant impact. Jermaine’s body has been damaged by years of infections he has caught easily and struggled to fight off. He takes lots of medication.
Jermaine boosts his immune system by infusing himself with immunoglobulin (three hour sessions once a week). This artificial boost allows Jermaine to take immunosuppressant medication for some of his other conditions.
Jermaine is, of course, in a high risk category for coronavirus. To keep his immune system as strong as possible, he had to stop taking all of his immunosuppressant medication. In the absence of that medication, the conditions for which he was taking it - some of which were under control - have remained, spread or worsened.
Jermaine works part time in a shop. He was locked down like all of us from March and was shielding until September. The shielding wasn’t so bad - Jermaine lives with his parents and is somewhat used to spending time on his own. He wasn’t terribly lonely but it was good to begin a phased return to work in September. Nobody knew then what the end of the crisis would look like, or when it would happen – a vaccine seemed far away.
The safest thing would certainly have been for Jermaine not to return to work until the crisis was over but, as we know, people want to work – Jermaine missed the social interaction, the structure, getting out of the house. He was also worried about how it would look to his employer if he didn’t go back relatively quickly, worried he could lose his job if his employer felt he was a burden. Jermaine had participated in remote training courses during the lockdown but, ultimately, working in a shop isn’t really a job you can do remotely.
Because of his other disabilities, Jermaine isn’t able to drive. Taking public transport seemed too unsafe but, luckily, he could be driven to and from work by his dad. The shop has social distancing, hand sanitiser, an open door for ventilation, and customers aren’t allowed in without masks, so it should be relatively safe. The trouble is that not everybody obeys the rules. Some people don’t bother with the hand sanitiser, some people don’t try to keep their distance from others (even in a shop), and some people refuse to wear masks. Jermaine understands there are medical exemptions for people who cannot wear masks but doubts that everyone who has told him they are exempt is telling the truth. Jermaine was glad to be back at work, but he was very worried about serving people who weren’t wearing masks.
Jermaine could simply have told his employer that he could not work until the pandemic was over. If he said that his health and safety would being put at risk by working, it would have been hard for his employer to do anything other than take him at face value and keep his job open. However, that’s not what’s best for Jermaine or his employer.
Jermaine spent hours drafting and redrafting a message to his boss – he wanted to explain the problem in a way that didn’t seem confrontational and propose a solution in a way that didn’t seem demanding. When he finally sent the message, he was terrified about how it would be received.
Happily, Jermaine’s boss responded well, the employer was willing and able to make a change – Jermaine is now not expected to serve customers who aren’t wearing a mask.
Employers who want inclusive workforces need to be ready to make adjustments to make work safer for their disabled employees. They need to listen to their employees but remember that listening isn’t enough on its own. The employers who do this best will initiate conversations with their disabled employees, giving them an opportunity for an open conversation and a safe space to raise their concerns.
Mark is a Senior Associate in the Employment team who acts for employers and employees. Mark advises individuals who have been dismissed or discriminated against or employers who are dealing with difficult and complicated employment disputes.
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