ZEELAND, Mich. — A Holland woman is frustrated with her employer, who is not accommodating her medical condition.
She recently got pneumonia and cannot wear a mask for her entire shift. She has the doctor’s note and the voice to prove it.
But Gentex basically told her that a face shield was a no-go. That’s when she contacted the FOX 17 Problem Solvers.
STRUGGLING TO BREATHE
“If COVID wasn’t happening, my job does not require this face mask. So, if I didn’t have to wear it, I’d be working,” said Bhree Layton, who's had asthma since she was 18.
She’s now struggling financially being off work since mid-February.
“I have six hours of vacation,” she said, holding back tears.
Her rent’s almost due, and she’s caring for her 14-year-old son Jayden.
“The only reason I’m not getting better is I’m stressing,” she said.
You can hear in her voice that she’s also struggling to breathe. Just last month doctors diagnosed Layton with pneumonia and upper respiratory infection.
“So, in the meantime I’m just flying by trying to do things the right way, and I’m paying a huge price,” she said.
Layton’s been employed at Gentex in Zeeland for almost two years. During the shutdown, she tells FOX 17 she took a voluntary layoff before going back in August because she wanted to work.
“When I went back, they were talking about how rude people were when they were called back. I was happy to go back. I wanted to go back,” she said.
Her station, she says, is more than six feet away from people, and if someone walks by, they too are wearing a mask.
Her doctor put her on restrictions saying she’s unable to wear a mask due to being short of breath.
And they’d like her to wear a face shield when she returns to work.
“So, when I got that, I was like, 'Okay, this will work; I just can’t have something like this (covering her face).'”
The next day she got an email from the leave coordinator at Gentex saying, "I’ve heard back from the company nurse, and they are unable to accommodate the shield. You will need to remain off work until that restriction is lifted."
“They’re not working with me to go back, and I have no money,” she said. “They haven’t even come back and said, ‘What about this: if you could wear the face mask for two hours or something...’; nothing comes back. The only response they could say on the phone--she kept saying, ‘Well, the CDC doesn’t recommend it.’ I understand that – but it’s not saying you can’t,” said Layton.
She went back to work for about a day but says the face mask was just too much and she couldn’t breathe.
Just last week her doctor sent in another work restriction saying she’s still not fully recovered due to a prolonged flare-up of her asthma and that she’s unable to wear a mask for more than 20 minutes at a time.
“She’s like, ‘Well, what’s gonna happen is, you’re gonna go on the floor, and everybody’s gonna want a face shield.’ You have pregnant people that sit in a chair, and not everybody wants to sit in a chair. And I said, ‘Because everybody’s gonna want a face shield, I can’t survive?’ That hurt.”
She applied for unemployment but is not eligible because she’s technically still employed, just on leave.
She filed a complaint with MIOHSA and the U.S. Department of Labor. Layton tells me she wishes it did not get that far because she really wants to work and loves her job.
“It’s a simple accommodation; it’s COVID; I don’t get it,” she said.
“Why can’t you figure out – help me figure out a way to figure something out? And you don’t want to release me from employment, then can’t you do something because – it’s not like I’m not trying to come back. I need an income; I need to survive,” she said.
Layton’s target date to go back is April 5, but she’s still concerned about her breathing.
I did reach out to Gentex to see why it would not accommodate a face shield.
A spokesperson said, "We are aware of this team member’s concern. However, out of respect for the privacy and confidentiality of our workforce, Gentex will not comment on any team member’s specific situation. We work hard to maintain a safe work environment, which includes following applicable CDC, MDHHS, and MIOSHA standards for mitigating the spread of COVID-19."
I reached out to MIOSHA as well.
The agency said it will process the complaint and cannot comment on that at this point.
It also provided the following from its FAQ section:
If an employee claims that they are medically unable to wear a face covering, what documentation or standard should the business owner/manager apply to verify that?
The plain language of Emergency Rule 7(5) & (6) does not contain an exception to the requirement that employees wear a face covering. However, employers have an additional obligation to adhere to the Americans with Disabilities Act (ADA). If an employee reports to the employer that he/she has a medical condition that makes it so he/she cannot wear a face covering, this would trigger the business’s obligation to engage the reasonable accommodation evaluation process outlined by the ADA. Under the ADA, an employee would be expected to present medical documentation from a medical provider regarding his/her medical condition and a restriction of being unable to wear a face covering. Per the ADA process, if the employee provides a legitimate medical reason for not being able to wear a face mask or covering, reasonable accommodations could include the following:
•Providing the employee an unpaid leave of absence until face masks or coverings are no longer required at work.
•Allowing the employee to work remotely; or
•Providing an alternative face mask or covering that is allowed by the employee’s medical condition.
In order to avoid MIOSHA enforcement action for an employer’s failure to protect workers from exposure to COVID-19, MIOSHA would require that the employer be able to show documentation that the employer has adhered to the ADA requirements by obtaining the medical documentation, including work restriction, from the employee to support the medical inability to wear a face covering. If an alternative type of covering were authorized for use by the employer as a reasonable accommodation under the ADA, MIOSHA would also expect that the employer provide documentation to indicate it has:
A. Authorized the alternative covering for the employee as a reasonable accommodation under the ADA.
B. Evaluated the use of the alternative covering in the context of its impact on employee risk to exposure to COVID-19 under its preparedness and response plan.
C. Performed any otherwise required hazard and PPE assessments related to the employee’s use of the alternative covering.
D. Determined that the wearing of the alternative type of covering does not create a hazardous exposure to the employee which has not already been addressed.
Can a face shield be used as an alternative to a face covering?
If the employee is able to supply the employer with medical documentation demonstrating his/her medical condition and medical restriction from being able to wear a face covering, the employer has granted the employee a reasonable accommodation, and the employer has determined a face shield does not create any new or different hazard for the employee in the work tasks or operations performed, then a face shield may be used in alternative to a face covering for the medically affected employee. For any employee who cannot establish a medical need or has not been granted a reasonable accommodation under the ADA by their employer, a face shield may not be used in alternative to a face covering.