Mandatory Sexual Harassment Prevention Training Must Be Completed By January 1, 2021

Question:  I remember reading about harassment prevention training requirements for small businesses, but the deadlines for completing the training kept changing.  Is there a deadline?

Answer:  Although originally all California employers who employ five or more employees had a January 1, 2020 deadline to provide effective interactive training regarding sexual harassment, Governor Newsom signed legislation extending the deadline to January 1, 2021.  Employers who have not yet completed the requisite trainings for their employees must do so by December 31, 2020 to comply with the January 1, 2021 deadline.  Employers who provided legally compliant harassment prevention training and education in 2019 do not have to provide it again until 2021.

As a reminder, Governor Brown signed Senate Bill 1343 in 2018 requiring businesses with five or more employees to provide interactive training in the prevention of sexual harassment to all employees. The training must address sexual harassment, including providing practical examples of harassment based on gender identity, gender expression, and sexual orientation.  It must also address the prevention of discrimination, retaliation, and abusive conduct.  The law requires employers to provide one hour of this interactive training to nonsupervisory employees and two hours of this interactive training to supervisors and managers.  The training must be provided once every two years. However, new hires or newly promoted supervisors must receive the training within 6 months of hire or promotion. Additionally, beginning January 1, 2021, employees who are seasonal, temporary, or hired to work for less than six months must receive the training within 30 calendar days after their hire date or within 100 hours worked, whichever occurs first.  Employers are not required to train employees who are employed for fewer than 30 calendar days and work for fewer than 100 hours.

The training may be completed by employees individually or as part of a group presentation, and it may be completed in shorter segments, as long as the applicable hourly total requirement is met.  To satisfy the “effective interactive training” requirement, the training may include any of the following:

  • Classroom training that is in-person whose content is created by a trainer and provided to employees by a trainer, in a setting removed from the employees’ daily duties.
  • E-learning that is individualized, interactive, computer-based training created by a trainer and an instructional designer that includes a link or directions on how to contact a trainer who shall be available to answer questions and to provide guidance within two business days after the question is asked.
  • Webinar training that is an internet-based seminar whose content is created and taught by a trainer and transmitted over the internet or intranet in real time.
  • The use of audio, video or computer technology in conjunction with classroom, webinar and/or e-learning training.

The Department of Fair Employment and Housing (“DFEH”) provides free online training courses on preventing sexual harassment and abusive conduct in the workplace that satisfy California’s training requirements.  The training is available in English, Spanish, Chinese, Korean, Tagalog, and Vietnamese.  The DFEH’s online training may be accessed at https://www.dfeh.ca.gov/shpt/.  Employers must retain a record of all employees’ training for a minimum of two years.

The January 1, 2021 deadline is fast approaching, so now is the time to ensure your employees receive the required training before December 31, 2020.


Employers With 5 or More Employees Will Be Required to Provide California Family Rights Act Leave

Question: I heard there is a new leave law that applies to small employers in California.  What is it?

Answer: The existing California Family Rights Act (“CFRA”) family and medical leave law allows eligible employees to take up to 12 weeks of unpaid leave in any 12-month period for personal illness, illness of a family member, or the birth, foster placement, or adoption of a child.  Recently enacted Senate Bill 1383 (“SB 1383”) expands the provisions of the CFRA and beginning January 1, 2021, the CFRA will require most employers with 5 or more employees to provide eligible employees with unpaid leave.

Prior to January 1, 2021, the CFRA only applied to businesses having 50 or more employees within a 75-mile radius.  The CFRA limited an employee’s ability to request leave in connection with a family member’s serious health condition to instances involving a child, parent, or spouse.  Further, the CFRA only provided a cumulative 12 weeks for both parents to take leave to bond with a child.

Starting January 1, 2021, the expanded CFRA will require all employers with five or more employees to provide family care and medical leave to all eligible employees. Eligible employees must have worked for the employer for more than 12 months, and must have worked a minimum of 1,250 hours during the 12 months prior to the leave.

The expanded CFRA does the following:

  • Allows eligible employees to take up to 12 weeks of unpaid CFRA leave to care for the employee’s parent, child, spouse, grandparent, grandchild, sibling, and registered domestic partner who has a serious health condition.
  • Requires that employers, upon granting the leave request,  guarantee the employee the same or a comparable position upon the termination of the leave.
  • Allows employees to take unpaid leave because of a “qualifying exigency” related to the covered active duty or call to covered active duty for an employee’s spouse, registered domestic partner, child, or parent in the military.
  • Requires employers to maintain existing health care coverage during CFRA leave.
  • Expands the definition of “child” to include all children, regardless of age or dependency, and children of a domestic partner.
  • Requires an employer who employs both parents of a child to allow each employee up to 12 weeks of unpaid leave during the first year of the child’s birth, adoption, or foster placement.

In 2018 California enacted the New Parent Leave Act (“NPLA”), requiring employers with 20-49 employees to provide eligible employees with leave to bond with a new child.  SB 1383 will repeal the NPLA on January 1, 2021 because the expanded CFRA provides new parent leave.

SB 1383 creates challenges for employers with 50 or more employees that are covered under both the CFRA and the federal Family and Medical Leave Act (“FMLA”).  Because SB 1383 expands the definition of covered family members under CFRA, employees who are covered by the CFRA and the FMLA may be eligible for up to 24 weeks of leave in a 12-month period.  For example, eligible employees may take 12 weeks of CFRA leave to care for their grandparent’s serious health condition, plus another 12 weeks of FMLA leave due to their own serious health condition.

Employers should review the expanded CFRA, revise employee handbooks, create new leave forms and leave tracking protocols, and begin preparing procedures for providing employees leave under the CFRA.


Employee Flu Vaccinations

Question: Because of increased concerns of employee health and safety due to the pandemic, can I require my employees to get the flu vaccine?

Answer:  Employers in industries like healthcare and education must follow specific requirements relating to flu vaccine mandates.  All other employers are obligated to provide a safe and healthy workplace.  However, if an employer mandates flu vaccines for all employees, it must be prepared to address employees who refuse to get the vaccine.

The Centers for Disease Control and Prevention (CDC) recently published its findings and recommendations on immunizations for the 2020-2021 flu season stating that getting the flu vaccine this fall is more important than ever to protect everyone from the flu and reduce the strain on the healthcare system due to COVID-19. As such, it is understandable that an employer would consider mandating flu vaccines for all of its employees.  However, employers must balance their obligations to keep the workplace safe with their obligations to prevent discrimination under federal and California law.

Under Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (FEHA), an employer must reasonably accommodate an employee with a disability if the person is otherwise qualified to safely perform all of the essential functions of the position, and the accommodation would not impose an undue hardship on the employer.  Likewise, an employer must reasonably accommodate sincerely held religious practices and beliefs that may conflict with workplace rules, as long as the religious practices and beliefs do not impose an undue hardship on the employer.

If an employer has a policy mandating the flu vaccine, and an employee refuses to get the vaccine because of a disability that would render the flu vaccine unsafe, or because of a sincerely held religious belief that prohibits vaccines, the employer cannot just terminate the employee for failing to comply with its policy. The employer must engage in the interactive process with the employee to try to find a reasonable accommodation that would allow the employee to continue to work without getting the vaccine.  Employers can ask employees for supporting documentation, like a doctor’s note, or information related to their refusal to get the vaccine.

Possible accommodations include imposing alternative requirements on the employee such as mask wearing, having the employee work remotely if feasible for the employee’s job duties, or alternate schedules or assignments for the employee to limit the risk and spread of infection.

As an alternative to mandating flu vaccines, employers may instead encourage employees to get the flu vaccine by providing information on vaccination benefits, offering scheduling flexibility to allow employees time to receive the vaccine, offering to pay employees for the time spent and cost of getting the vaccine, or hosting an on-site vaccination clinic.  Employers should implement other controls to protect workers and reduce the transmission of the seasonal flu virus in the workplace, including encouraging sick workers to stay home, promoting hand hygiene and cough etiquette, and keeping the workplace clean.

If an employer is asking employees for any medical information like proof of immunization or a doctor’s note regarding flu vaccine restrictions, it must ensure the privacy of this information keeping it in a secure location, separate from the employee’s personnel file, accessible only to designated staff members.

For more information on the CDC and EEOC recommendations, visit:


Mandatory Workplace Sexual Harassment Prevention Training (In English)

  • Date:  December 9, 2020 (in English)
  • Time: 12:00 PM – 1:00 PM (First Hour) and 1:00PM – 2:00 PM (Supervisors only)
  • Cost: $20 for non-supervisors and $40 for supervisors
  • Presenter: Bradley Levang

Employers in California only have until January 1, 2021 to comply with California law requiring employers with five (5) or more employees to provide one (1) hour of training in the prevention of sexual harassment and abusive conduct in the workplace to non-supervisorial employees, and two (2) hours of training in the prevention of sexual harassment and abusive conduct in the workplace to supervisors and managers.  On December 9, 2020 starting at 12:00 PM, Fenton & Keller will present this training in English live via “Zoom.”  If you have 5 or more employees and have employees who still have not received this training, do not lose the opportunity to register them for this training and ensure your compliance with this law.

Registration Required.

Register for this Webinar

Recent Changes to COVID-19 Paid Leave Programs

The purpose of this article is to detail recent changes to COVID-19 laws that may apply to your business.  If your business is in the healthcare industry, if you employ emergency responders, or if you have 500 or more employees anywhere in the United States, these new laws apply to your business.

Introduction

Two significant changes expand existing COVID-19 paid leave laws and create a new California COVID-19 related leave program. Both laws may affect the types of paid leave programs available to employees within your business, affecting your obligation to provide FFCRA leave.

First, the Secretary of Labor published revisions and clarifications to the emergency paid sick leave and expanded family medical leave established under the Families First Coronavirus Response Act (FFCRA), set to expire December 31, 2020. These revisions are effective September 16, 2020 and alter the definition of “health care provider,” making more employees eligible for FFCRA leave. Accordingly, employees within your health care business who were previously excluded from FFCRA leave may now qualify. The FFCRA applies only to employers with fewer than 500 employees.

Second, on September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”), which established COVID-19 Supplemental Paid Sick Leave for employees who are employed by private businesses of 500 or more employees or are employed by certain types of health care providers. This bill is effective on September 19, 2020 and expires December 31, 2020.

These two changes are described more fully below.

New Leave Obligations – Employers in the Health Care Industry with Fewer than 500 Employees

After the State of New York successfully challenged portions of the FFCRA, the Department of Labor reexamined provisions within the FFCRA and has now altered the definition of “health care provider.” This expanded definition makes more employees eligible for FFCRA leave, and requires an examination of the employee’s job duties to determine if they are eligible for FFCRA leave.

Originally, the FFCRA focused on the employer’s industry or business, stating that any employee employed by a “health care provider” is excluded from eligibility for FFCRA leave. Finding that this definition excluded too many employees—contrary to the law’s intended purpose—the DOL revisions require analysis of skills, role, duties, or capabilities of the employee. Specifically, the DOL revised the definition of “health care provider” to mean employees who are employed to provide diagnostic services, preventative services, treatment services, or services that are so integrated and necessary that their absence would negatively affect patient care. Employees whose duties fall into one of those categories may be excluded from FFCRA leave. The DOL provided the following examples of the types of duties in each category that would cause an employee to be excluded from FFCRA eligibility:

  • Diagnostic Services: Taking or processing samples; performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.
  • Preventative services: Screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.
  • Treatment Services: Performing surgery or other invasive or physical intervention, administering or providing prescribed medication, or providing or assisting in breathing treatments.
  • Services that are integrated with and necessary to diagnostic, preventative, or treatment services that, if not provided, would adversely impact patient care: Bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, transporting patients and samples.

The DOL also provided a non-exhaustive list of employees that fall under the definition of “health care provider,” meaning their duties fall within the above categories and they are excluded from FFCRA eligibility:

  • Nurses, nurse assistants, medical technicians, and any other persons who directly provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.
  • Employees providing diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care under the supervision, order, or direction of, or providing direct assistance to nurses, nurse assistants, medical technicians, and other persons who directly provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.
  • Employees who may not directly interact with patients and/or who might not report to another health care provider or directly assist another health care provider, but nonetheless provide services that are integrated with and necessary components to the provision of patient care, such as a lab technician.

With this new definition, there are many employees of health care providers who were previously excluded from FFCRA leave eligibility who will now be eligible if they meet the other eligibility requirements. The DOL’s non-exhaustive list of employees whose job duties do not fall within the above definition of health care provider and are thus eligible for FFCRA leave include:

  • Information technology (IT) professionals;
  • Building maintenance staff;
  • Human Resources personnel;
  • Cooks;
  • Food service workers;
  • Records managers;
  • Consultants; and
  • Billers

Employers in the health care industry who have fewer than 500 employees will have to reevaluate the eligibility criteria they apply when an employee requests FFCRA leave. For more information visit https://www.dol.gov/agencies/whd/pandemic or the DOL’s FAQ page https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

New Leave Obligations Applicable to Employers with 500 or More Employees in the United States, And Employers of Health Care Providers and Emergency Responders Regardless of the Number of Employees Employed by the Business

AB 1867 establishes a COVID-19 Supplemental Paid Sick Leave (SPSL) program that applies to:

  1. Employers with 500 or more employees in the United States; and
  2. Employers of any size who employ health care providers or emergency responders.

Employees are eligible for SPSL if they leave their place of residence to perform work, and are either employed by an employer that has 500 or more employees in the United States, or are employed as a health care provider (using the above detailed definition) or emergency responders, and employer has excluded them from emergency paid sick leave under the FFCRA.

When the above requirements are met, employers shall provide SPSL to an employee if the employee is:

  • Subject to a federal, state, or local quarantine or isolation order related to COVID-19; OR
  • Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; OR
  • Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Employers must provide eligible employees with 80 hours of SPSL if the employee is either considered as full time, or has worked—or was scheduled to work—on average of at least 40 hours per week in the two weeks before the date that the employee took SPSL.

An eligible employee who works fewer than 40 hours per week, SPSL is to be provided as follows:

  • For employees who have a normal weekly schedule, employers shall provide the same number of hours that the employee is normally scheduled to work over two weeks.
  • For employees that have variable hours, employers shall provide 14 times the average number of hours worked each day in the last six months.
  • For employees that have worked for less than six months, but more than 14 days, this calculation shall be made over the entire period the employee has worked at the employer’s business.
  • For employees with variable hours, but who have worked with the employer for 14 days or less, employers shall provide the employee with the same number of hours worked.

Once an eligible employee determines how many SPSL hours to use, the employer shall make SPSL available to use. Employees may make SPSL requests either orally or in writing. SPSL is provided to employees in addition to any other paid sick leave they receive pursuant to existing law and employers may not require an employee to use other available paid time off or vacation time before or in lieu of SPSL.

The rate of compensation for SPSL is the highest of the employee’s regular rate of pay during the last pay period, or the state or local applicable minimum wage, up to daily and aggregate total maximum payments.

Employers are required to display a poster regarding SPSL, which may be disseminated electronically. We have attached a copy of the updated poster.

Conclusion

If you have any questions about your obligations as an employer of health care providers, emergency responders, or if you have 500 or more employees anywhere in the United States, and have questions about how these new laws apply to your business, do not hesitate to any of the attorneys in our employment practice group.  We will continue to monitor changes in the law and provide updates that affect your obligations as an employer.


California COVID-19 Supplemental Paid Sick Leave

On September 9, 2020 Governor Newsom signed AB 1867 granting COVID-19 paid sick leave to many employees who were excluded from eligibility under the Federal Families First Coronavirus Response Act.  Covered employers must begin providing this new supplemental paid sick leave no later than September 19, 2020, and post a required notice.

Covered Employers

The California Supplemental Paid Sick Leave Act expands leave coverage to:

(a) all employers with 500 or more employees in the United States (e.g., those not covered by the Families First Coronavirus Response Act (FFCRA)), and

(b) health care providers and emergency responders whose employers elected to exclude them from FFCRA paid sick leave eligibility.

Eligible Employees

Employees are eligible to take the new COVID-19 supplemental paid sick leave if the worker meets one or more of the following criteria:

  1. The employee is employed by a covered employer;
  2. The employee is employed as a health care provider or emergency responder and the employer has elected to exclude the employee from FFCRA sick leave eligibility. The definition of “health care provider” has been narrowed, and includes only employees providing health care services, meaning the employee is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. The new definition of health care provider states that employees who do not provide health care services are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.

An employee is not entitled to supplemental paid sick leave if the employee is able to work from home.

In addition, an eligible employee does not include:

  • An employee who works in the following industries:
    • Canning, Freezing, and Preserving;
    • Handling Products After Harvest;
    • Preparing Agricultural Products for Market on the Farm; or
    • Employed in an agricultural occupation
  • An employee who works for a food facility, defined as an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level.
  • An employee who delivers food from a food facility.

Although these employees are excluded from the COVID-19 Supplemental Sick Leave, they may be covered by Executive Order N-51-20, which provides paid sick leave to food sector employees.  See https://www.dir.ca.gov/dlse/COVID-19-Food-Sector-Workers-poster.pdf

Reasons for Taking Supplemental Sick Leave

An eligible employee is entitled for COVID-19 supplemental paid sick leave if the employee is unable to work because the employee is:

  • Subject to a federal, state or local quarantine or isolation order related to COVID-19; or
  • Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
  • Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Amount of Leave

Full-time employees are eligible for 80 hours of COVID-19 supplemental paid sick leave.  “Full-time” means the employee:

  • Is considered “full-time” by the employer; or
  • Is scheduled to work 40 hours per week; or
  • Worked, on average at least 40 hours per week during two weeks prior to taking leave.

Part-time employees are eligible for the number of sick leave hours equal to the number of hours the employee is normally scheduled to work in two weeks. If an employee works a varying schedule, the employee is entitled to sick leave hours equal to 14 times the average number of hours the employee worked each day in the six months prior to the leave, or over the total time of employment if less than six months.

The supplemental leave must be provided in addition to already existing State paid sick leave under the Healthy Workplaces, Healthy Families Act of 2014.  However, any California employer who provided COVID-19 related sick leave due to a local ordinance requiring COVID-related paid sick leave ordinance may count the local ordinance-provided paid sick leave toward this new California supplemental paid sick leave.  For example, if an employer provides a full-time worker 40 hours of COVID-19-related supplemental paid sick leave as required by a local ordinance, those 40 hours would count toward the employer’s obligations under this new California supplemental paid sick leave law as long as the leave provided by the employer is for a reason listed under this new California law and is at least at the same rate of pay as this new California law requires.  Employers may not require employees to use other paid or unpaid leaves before the employee uses this new COVID-19 supplemental paid sick leave.

An employer may not require the employee to use other paid or unpaid leave, sick leave, vacation, PTO before using COVID-19 supplemental paid sick leave.

Pay Rate

Eligible employees are paid COVID-19 supplemental paid sick leave at the employee’s regular rate of pay as if the employee has been scheduled to work the hours the employee took off as COVID-19 supplemental paid sick leave, up to a maximum of $511 per day and $5,110 in total.

Medical Certification

California employers may not require a doctor’s note or other certification regarding an employee’s use of this new supplemental paid sick leave, nor may the employer deny the employee leave based solely on a lack of certification.  However, the Labor Commissioner has stated that it may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the employer has other information indicating that the worker is not requesting COVID-19 Supplemental Paid Sick leave for a valid purpose.

Notice Requirements

The law requires employers to post and to provide the following notice to all employees: https://www.dir.ca.gov/dlse/COVID-19-Non-Food-Sector-Employees-poster.pdf

For any remote workers, the notice may be emailed to them.

Sunset Provision

Covered employers must begin providing supplemental paid sick leave no later than September 19, 2020.  The supplemental sick leave provision will expire on December 31, 2020, or upon the expiration of any federal extension of the federal emergency paid sick leave provisions under the FFCRA, whichever is later.

For more information, visit the FAQs at:  https://www.dir.ca.gov/dlse/FAQ-for-PSL.html


Fenton & Keller COVID-19 FAQs

There are some important changes to laws relating to COVID-19 as the Department of Labor and California Legislature respond to compliance with the Families First Coronavirus Response Act (FFCRA). We remain available to assist you with any questions you may have. The well-being of our employees, clients, business partners and community remains our constant priority. We value our relationship with you and are committed to staying connected and helping you through this extraordinary time.

May an employee refuse to come to work due to a fear of becoming infected with COVID-19?

Potentially. Employees may be protected from retaliation under the Occupational Safety and Health Act (“OSHA”) in certain circumstances when they refuse to perform work as directed.  Specifically, an employee may refuse an assignment that involves “a risk of death or serious physical harm” if all of the following conditions apply: (1) the employee has “asked the employer to eliminate the danger and the employer failed to do so”; (2) the employee “refused to work in ‘good faith’” (a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.”  While each situation is different, and a generalized fear of contracting COVID-19 is not likely to justify a work refusal in most cases, employers should conduct a thorough review of the facts before any disciplinary action is taken against an employee who refuses to perform his or her job for fear of exposure to COVID-19.

Do I have to provide my employees with paid leave if I require them to self-quarantine after traveling to a high-risk area?

            It depends.  Employees in California are entitled to paid sick leave under the Healthy Workplaces, Healthy Families Act (“HWHF”).  In addition, under the Families First Coronavirus Response Act (“FFCRA”), employees are entitled to up to two weeks of paid sick leave if they are subject to a federal, state, or local quarantine or isolation order.  The California Labor Commissioner has taken the position that employees may use accrued HWHF sick leave to self-quarantine.  Unlike California paid sick leave, an employee would not be entitled to the FFCRA paid sick leave unless the employee’s quarantine is required by a federal, state, or local order or by the advice of a healthcare provider.  Thus, an employee in this situation would be able to use any accrued paid California HWHF sick leave but not paid FFCRA sick leave.  Once the employee exhausts his or her HWHF sick leave, the employer may allow the employee to use his or her other accrued PTO (e.g., vacation) while on leave.

How much information can I request from an employee who calls in sick with no explanation?

According to the Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”), employers may ask such employees if they are experiencing symptoms of a virus during a pandemic.  For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, loss of taste or smell, or sore throat.  Employers must maintain all information about employee illness as a confidential medical record in files that are separate from the employee’s personnel file.

May I take all employees’ temperatures before allowing them to enter the workplace?

            Yes.  Generally, measuring an employee’s body temperature is a medical examination that may only be performed in limited circumstances.  During the COVID-19 pandemic, the EEOC and the DFEH agree that employers may measure an employee’s body temperature for the limited purpose of evaluating the risk that the employee’s presence poses to others in the workplace.  Employers that maintain records regarding employee temperatures must keep all information confidential and separate from employee personnel files.

Can an employer ask an employee physically coming into the workplace if they have family members with COVID-19 or associated symptoms?

            No.  The Genetic Information Nondiscrimination Act of 2008 (GINA) forbids employers asking medical questions about family members of employees. The EEOC recommends asking more general questions such as “have you had contact with any people with COVID-19 associated symptoms?”

Can an employer bar an employee from entering the workplace if the employee refuses to answer questions about COVID-19 symptoms?

            Yes.  The EEOC and the DFEH both advise employers to follow CDC guidelines and send any employees with COVID-19 symptoms home.  California’s re-opening guidance requires employers to adopt screening measures for all employees entering the workplace.  Many employers have implemented questionnaires with questions that ask employees if they had or have COVID-19 symptoms.  Questions such as these help employers determine whether the employee would pose a threat to the health and safety of other employees.  Employees that refuse to answer such questions may be sent home.

What information may an employer reveal if an employee is quarantined, tests positive for COVID-19, or has come in contact with someone who has COVID-19?

            Employers should not identify any such employees by name in the workplace to ensure compliance with privacy laws.  If an employee tests positive for or is suspected to have COVID-19, the employer should contact local health officials and follow the most current local, state, or federal public health recommendations.  Directions from public health authorities may include closing the worksite, deep cleaning, and permitting or requiring telework.

Employers may notify affected employees (those who came in close contact with the infected employee) in a way that does not reveal the personal health information or identity of the infected employee.  For example, the employer could speak with employees or send an email or other written communication stating: “[Employer] has learned that an employee at [office location] tested positive for COVID-19.  The employee received positive test results on [date].  This email is to notify you that you have potentially been exposed to COVID-19 and you should contact your health care provider and local public health department for guidance and any possible actions to take based on individual circumstances.”

Employers may not confirm the health status of employees or communicate about employees’ health.

Can I require employees to submit to a COVID-19 test before permitting employees to enter the workplace?

            The Centers for Disease Control’s (“CDC”) current guidance states that antibody tests should not be used to make decisions about returning employees to work because they are less accurate and reliable than virus testing.  Based on this guidance, the EEOC and the DFEH have taken the position that employers may require employees to submit to “viral” testing but not “antibody” testing before permitting employees to enter the workplace.  Employers should be aware that viral tests can have false-negative results and that a negative viral test does not mean that an employee will not acquire COVID-19 in the future.

If an employee has a medical condition that increases his or her risk for severe illness from COVID-19, is the employee entitled to a reasonable accommodation?

                Maybe.  According to the CDC, people of any age with the following underlying medical conditions are at increased risk for severe illness from COVID-19: cancer; chronic kidney disease; COPD; immunosuppressed state from solid organ transplant; obesity; serious heart conditions; sickle cell disease; and Type-2 diabetes.  Individuals with the following conditions may be at increased risk for severe illness from COVID-19: moderate to severe asthma; cerebrovascular disease; cystic fibrosis; hypertension or high blood pressure; immunocompromised state from blood or bone marrow transplant; immune deficiencies; HIV; use of corticosteroids, or use of other immune weakening medicines; neurologic conditions such as dementia; liver disease; pregnancy; pulmonary fibrosis; smoking; thalassemia (a blood disorder); and Type-1 diabetes.

If the underlying medical condition qualifies as a disability, then the employer must reasonably accommodate the employee, absent an undue hardship.  In California, disabilities are broadly defined as conditions that limit a major life activity, including physical and mental disabilities, as well as medical conditions. California definitions and protections can be broader than protections under federal law. See https://www.dfeh.ca.gov/peoplewithdisabilities/. If the underlying medical condition does not qualify as a disability, employers are not required to reasonably accommodate the employee, though the EEOC and the DFEH suggest that employers attempt to accommodate workers who are or may be at increased risk of severe illness from COVID-19 as a general strategy to keep employees safe and healthy.

Is an employee entitled to an accommodation in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?

Yes, in California.  Federal law does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom he or she is associated.  For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

However, under California  law, it is unlawful to discriminate against an employee because of a perception that the employee is associated with a person, such as a family member, who has a disability.  Although California courts have not directly stated that there is an independent duty to provide such employees with a reasonable accommodation, an employer’s failure to do so could be used as circumstantial evidence that an employer’s decision to deny an employee’s accommodation request was motivated by a discriminatory animus toward that employee’s association with a disabled family member.

I heard that there are new changes this month to the Department of Labor’s (“DOL”) regulations on the Families First Coronavirus Response Act (“FFCRA”).  What are the changes?

Recently, a District Court in New York issued a decision that found certain provisions of the DOL’s FFCRA regulations invalid. On September 11, 2020, the DOL posted revisions to its regulations in response to this court’s decision.  The revisions are set to be effective on September 16, 2020, and do the following:

  • Reaffirm and provide additional explanation for the requirement that employees may take FFCRA paid sick leave and expanded family medical leave only if work would otherwise be available to them.
  • Reaffirm and provide additional explanation for the requirement that an employee must have employer approval to take FFCRA leave intermittently.
  • Expand the eligibility of employees who are eligible for paid sick leave and expanded family medical leave who work for in the health care industry.  This change is significant and means that some employees who work for a health care provider or facility will now be eligible for paid sick leave and expanded family medical leave. The FFCRA previously allowed employers to exclude employees who are “health care providers” or who are “emergency responders” from eligibility for paid sick leave and expanded family medical leave.  The DOL revised the definition of “health care provider” to significantly narrow this exclusion.  The DOL’s new definition of a “health care provider” for purposes of determining eligibility for FFCRA paid sick leave and expanded family medical leave focuses on the duties of employees, rather than on the fact that the employer provides health care services.  Under the DOL’s new regulations, employers who are covered by the FFCRA can deny paid sick leave and expanded family medical leave only to those employees who meet this new definition of “health care provider.”  Health care providers are only those employees who  provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care. Some examples of employees who meet the definition of “health care provider” and are not eligible for FFCRA leave are nurses, nurse assistants, medical technicians, laboratory technicians who process test results, employees performing or assisting in the process of x-rays or other diagnostic tests and procedures, or transporting patients and samples.  Employees who do not meet the definition of “health care provider” and are therefore eligible for FFCRA leave include IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.
  • Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
  • Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

Political Rally Participation

Question: I have a strict “no politics” policy at my business, but I learned that two of my employees attended a political rally over the weekend.  One of the employees missed their scheduled shift to attend the rally and the other was arrested and charged with unlawful assembly.    Can I fire these employees because of their participation in this rally?

Answer:   California law allows private employers to place certain restrictions on employees’ political activities at work, including prohibiting the use of their positions and employer-provided equipment for political expression.  Similarly, employers may prohibit signage, clothing and other items that employees may use to communicate a political or protest message.  However, California law provides broad protections for employee political activity occurring outside of the workplace.

California Labor Code Section 1101 states, “No employer shall make, adopt, or enforce any rule, regulation, or policy:

  • Forbidding or preventing employees from engaging or participating in politics.
  • Controlling or directing, or tending to control or direct, the political activities or affiliations of employees.”

Section 1102 of the Labor Code provides, “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”  Additionally, Labor Code sections 96(k) and 98.6 protect employees from retaliation for “lawful conduct” occurring during non-working hours away from the employer’s premises.

An employee’s participation in a political rally would likely qualify for these protections.  That said, an employer may still discipline or fire an employee if their political activities violate employer policies.  Furthermore, the law does not require employers to provide time off to employees who wish to attend a rally, and employers may discipline any employee who violates internal attendance or leave policies when done so consistently. Selective enforcement of a policy could result in liability for retaliation if the employee shows the discipline was targeted at political activity or aimed at a certain political view.

Employees are entitled to these protections even if the employee’s participation in a march, protest or rally leads to the employee’s arrest.  California Labor Code 432.7 prohibits employers from asking job applicants and employees about an arrest that did not lead to a conviction and bars employers from using an employee’s arrest pending trial as the sole determining factor in making an adverse employment decision against them.

Employers in this situation should investigate the facts and circumstances of the employee’s arrest to determine whether conduct leading to the arrest violates the employer’s policies or is unlawful. Police may arrest participants in a march, protest or rally, but some of these arrests do not result in charges or convictions, so the fact that an employee is arrested will normally not by itself justify termination of employment.

Employees’ social media posts that violate an employer’s harassment, discrimination and retaliation prevention or employee safety policies require a different analysis.  Private employees do not have an unfettered First Amendment right to free speech and may be held accountable for social media conduct.   Some examples of posts that may warrant disciplinary action or termination include:

  • Hate speech regarding any protected characteristic or group;
  • Speech that creates a hostile work environment; and
  • Threats to employee health and safety.

New California Employment Laws and Regulations

Question:  I am in the process of reopening my business after the COVID-19 shutdown.  Are there any new laws of which I need to be aware?

Answer:  Yes, although COVID-19 continues to be the focal point for most businesses, there are many new laws and recent court decisions of which employers must be aware – including expansion of anti-discrimination laws and updated guidance from the Department of Fair Employment and Housing (“DFEH”); expansions to paid family leave and the applicability of the independent contractor ABC Test.

The DFEH issued new regulations, effective July 1, 2020, which set forth limitations in advertising, recruitment, and the interview process related specifically to age- and religious-based discrimination.  For example, the regulations provide that job advertisements cannot include a maximum experience limitation; cannot require that candidates maintain a college-affiliated email address; and cannot use terms such as “young,” “recent college graduate,” or other terms that imply a preference for employees under the age of 40 or that a reasonable person would interpret as deterring or limiting employment of people age 40 and over.

The regulations also provide that any information related to an applicant’s schedule or availability for work cannot be used to ascertain the applicant’s religious creed, disability, or medical condition.  Any scheduling inquiry, either in an interview or on a job application, must clearly communicate that an employee need not disclose any scheduling restrictions based on legally protected grounds in language such as: “Other than time off for reasons related to your religion, a disability or a medical condition, are there any days or times when you are unavailable to work?”

The DFEH also recently updated its COVID-19 FAQ.  While many of the updated answers defer to guidance from both the Centers for Disease Control and Prevention and the Equal Employment Opportunity Commission, the updated FAQ reminds covered employers of their obligations to engage in the interactive process with each employee who may need a reasonable accommodation due to a medical condition – including a medical condition which may increase an individual’s risk of severe illness from COVID-19.  See https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf

Further, while California law already protects individuals from illegal discrimination by employers based on their sexual orientation, gender identity, and gender expression, the United States Supreme Court recently ruled that discrimination on the basis of these categories is unlawful discrimination on the basis of sex in violation of Title VII of the Civil Rights Act.  The Supreme Court explained, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”

In addition to anti-discrimination laws, employers and leave administrators should also be aware that on July 1, 2020, two new California laws went into effect.  Employees who are eligible for Paid Family Leave benefits may NOW receive these benefits for eight weeks.  Additionally, the independent contractor ABC Test under AB 5 became applicable for purposes of workers’ compensation, requiring reporting of payroll for individuals who may have been classified as independent contractors but who are now considered employees under AB5.


Employee’s COVID-19 Exposure at Work

Question: I heard that employees who contract COVID-19 at work are automatically entitled to workers’ compensation benefits.  Is this true? If so, what am I required to do if my employee tells me he/she contracted COVID-19 at work?

Answer: On May 6, 2020, Governor Newsom signed Executive Order N-62-20 (https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf) which provides that an employee who contracts any COVID-19 related illness between March 19, 2020 and July 5, 2020 is presumed to have contracted it at his or her jobsite, making the employee eligible for workers’ compensation benefits if all of the following conditions are met:

  1. The employee was diagnosed by a medical doctor who holds a physician and surgeon license issued by the California Medical Board or tested positive within 14 days after a day the employee worked, at the direction of the employer, at the employer’s job site, excluding the employee’s home or residence;

  2. If the employee was diagnosed by a medical doctor, the diagnosis must be confirmed by a further testing within 30 days of the date of the employee’s medical diagnosis; and

  3. The employee must have worked at the employer’s jobsite on or after March 19, 2020.

An employee who meets these criteria is presumed to have contracted COVID-19 at work regardless of whether the employee was providing essential services.  The presumption applies to all employers (not just essential businesses) and regardless of the number of employees employed.  An employer can dispute this presumption by presenting evidence that the employee did not contract COVID-19 at work.  Employers have 30 days to investigate an employee’s claim and decide whether to accept or deny the employee’s claim. If an employer fails to deny an employee’s claim within 30 days, the COVID-19 claim is presumed to be a compensable workers’ compensation claim.  However, an employer can still rebut the presumption if evidence is discovered after the 30-day period.

This workers compensation presumption favors employees and employers because it makes it simpler for employees to qualify for benefits, and, in most cases, limits employee damages to those provided by the workers compensation program.

All employers have a duty to determine whether the employee contracted COVID-19 at work pursuant to the new Occupational Safety and Health Administration (OSHA) requirements.  Employers must perform a reasonable investigation to determine if the employee was exposed to COVID-19 at work based on information reasonably available to it at the time of its investigation.  Employers should ask certain key questions about the employee’s work environment to determine if exposure was possible and refrain from making inquiries that would violate the employee’s right to privacy.

Unless an employer has 10 or fewer employees or is in certain low-hazard industries, if it determines the employee has a confirmed case of COVID-19, contracted it at work, and the illness resulted in the employee’s death, loss of consciousness, absence from work, work restrictions, or required more than first aid treatment, the employer must record the illness on OSHA Form 300 (“Log of Work-Related Injuries and Illnesses”).  Low-hazard industry employers are only required to report work-related COVID-19 illnesses if they result in the employee’s death, in-patient hospitalization, amputation, or loss of an eye.  A complete list of low hazard industries can be viewed at

https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904SubpartBAppA

If you are unsure what you should do if your employee tells you he/she has contracted COVID-19 at work, you should contact an attorney and take the necessary precautions to ensure your employees, customers and public remain safe.


In Order to Promote Prompt and Efficient Treatment, California Employees With COVID-19 Can Receive Workers’ Compensation Benefits

On May 6, 2020, Governor Newsom signed an Executive Order establishing a rebuttable presumption that certain California workers who contract COVID-19 are presumed to have a workplace injury covered by the workers’ compensation system.  The Order states that for any employee who tests positive for or is diagnosed with COVID-19 within 14 days after a day that the employee worked at the employer’s work site at the direction of the employer, such illness shall be presumed to arise out of and in the course of the employment for purposes of awarding workers compensation benefits.  This presumption does not apply to employees who work from home and did not visit a worksite at the employer’s direction within 14 days of receiving a diagnosis.

Full text of the Executive Order may be accessed here: https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf.


COVID-19 Supplemental Sick Leave and New Notice for Food Sector Workers

Executive Order N-51-20 (https://www.gov.ca.gov/wp-content/uploads/2020/04/4.16.20-EO-N-51-20.pdf) requires hiring entities with 500 or more employees to provide supplemental paid sick leave to food sector workers for specified reasons related to COVID-19. Hiring entities with 500 or more workers nationwide must provide paid sick leave to food sector workers who are unable to work for defined reasons related to COVID-19.  In issuing the Executive Order the Governor noted that food sector workers are part of the essential critical infrastructure of food supply, but many were not eligible for paid sick leave under the Families First Coronavirus Response Act (FFCRA) because they work for large employers who are exempt from the FFCRA.  To qualify for COVID-19 Supplemental Paid Sick Leave, a food sector worker must work for or through a hiring entity with more than 500 employees nationwide and:

  1. be exempt from the Governor’s March 19, 2020 Stay-at-Home Order (EO N-33-20);
  2. perform work for the business outside the home; and
  3. satisfy one of the following:
    • Work in one of the industries or occupations defined in Industrial Welfare Commission Wage Orders: 3 (the canning, freezing, and preserving industry), 8 (industries processing agricultural products after harvest), 13 (facilities on a farm that prepare products for market), or 14 (general agricultural occupations);
    • Work for a business that runs a food facility, which includes grocery stores, restaurants, food warehouses, distribution centers, and grocery and restaurant personnel; or
    • Deliver food from a food facility for or through a hiring entity.

The California Labor Commissioner released a required posting to inform food sector workers of their right to supplemental paid sick leave.  Covered employers must display the notice where workers can easily read it. If workers don't frequent the workplace, covered employers are required to electronically distribute the notice.  For more information see the FAQs at https://www.dir.ca.gov/dlse/FAQ-for-PSL.html. The new notice can be accessed here: https://www.dir.ca.gov/dlse/COVID-19-Food-Sector-Workers-poster.pdf


Employers Are Not Required to File an EEO-1 This Year

Generally, businesses with 100 or more employees (or with fewer than 100 employees if the business is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees), are required by law to file an EEO-1 report with the U.S. Equal Employment Opportunity Commission (“EEOC”) each year. The EEO-1 Report is a compliance survey that requires company employment data to be categorized by race/ethnicity, gender, and job category and reported to the EEOC.  The EEOC announced a delay in the 2019 EEO-1 Component 1 data collection due to the COVID-19 public health emergency.

The EEOC expects to begin collecting the 2019 EEO-1 Component 1 along with the 2020 EEO-1 Component 1 in March 2021 and will notify filers of the precise date the surveys will open as soon as it is available.  For more information, visit https://www.eeoc.gov/employers/eeo-1-survey


Maintaining Exempt Worker Status

Due to reductions in workforce, managers and other exempt employees may now be spending more than 50% of their time doing non-exempt work, resulting in the loss of their exempt status.  As a reminder, employees must meet both a salary test and a duties test to be properly classified as exempt.  As a result of the current pandemic, exempt employees may now be doing the work of non-exempt employees who were laid off.  Exempt employees must spend more than 50% of their time performing exempt, non-production work in order to satisfy the duties test.

Employers should assess whether employees who are classified as exempt are currently spending 51% or more of their time doing exempt work, or if their duties have changed and they no longer meet the duties test. A description of the Executive, Administrative, Professional and other exemptions can be found in the Industrial Welfare Commission Wage Order that applies to your business, https://www.dir.ca.gov/iwc/WageOrderIndustries.htm


Employees Refusing to Return to Work

If an employee refuses to return to work, employers should first determine the reasons for the refusal.  Depending on the reason, the employee’s refusal may trigger the employer’s duty to engage in the interactive process to determine if the refusal is related to a disability and can be reasonably accommodated. The employee may also be eligible for expanded FMLA or paid sick leave under the Families First Coronavirus Response Act (FFCRA) depending on the reason for the refusal.

An employee’s refusal to return to work due to the fact that he or she feels unsafe at the workplace due to COVID-19 may be permitted in some circumstances, although generally if the employer is permitted to reopen and has taken the safety steps required by state and federal law, a generalized fear of contracting COVID-19 is unlikely to justify a refusal to return to work.

However, both the National Labor Relations Act (“NLRA”) and the Occupational Safety and Health Act (“OSHA”) provide employees the right to refuse to work in conditions they believe to be unsafe, if they have a “reasonable, good-faith belief” that working under certain conditions is unsafe or unhealthy (NLRA) or if they believe they are in “imminent danger” (OSHA).  These standards are strictly defined by statute, and employers should consult legal counsel if any employee asserts these claims. Under the OSHA rules, an employee may refuse an assignment in an “imminent danger” situation, which involves “a risk of death or serious physical harm” if all of the following conditions apply: (1) the employee has “asked the employer to eliminate the danger and the employer failed to do so”; (2) the employee “refused to work in ‘good faith’” (which is defined as a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.”

Additionally, the California Employment Development Department (“EDD”) recently issued new guidelines that clarify that individuals are disqualified from unemployment insurance benefits if they refuse to accept “suitable” employment when offered. Under California law, the EDD will consider whether the particular work is “suitable” in light of factors such as the degree of risk involved to the individual’s health and safety.  If an employer is in an industry permitted to reopen and has complied with required state and federal safety regulations, the employee may not have good cause to refuse to return to work and may be disqualified from receiving benefits. Employees who are receiving unemployment benefits are required to sign certifications for continued benefits and they will be asked if they have refused any work. Employees who have refused work are required to answer “yes” to that question, which will trigger an eligibility interview by the EDD. During that interview, the employee must inform the EDD of the facts surrounding the offer of employment that the employee refused, and why the offer was refused.  For more information, see https://edd.ca.gov/about_edd/coronavirus-2019/faqs.htm


The Department of Fair Employment & Housing Offers Free Sexual Harassment Prevention Training for Non-supervisorial Employees

On May 21, 2020 the California Department of Fair Employment and Housing (DFEH) announced a free sexual harassment prevention training for non-supervisory employees. The online training can be used to meet a legal requirement that, by January 1, 2021, employers having five or more employees must provide at least one hour of classroom or other effective interactive training and education regarding sexual harassment prevention to all non-supervisory employees in California. This legal requirement is contained in Government Code section 12950.1

The DFEH’s new training is interactive and optimized for mobile devices and is accessible for persons with disabilities. The training is currently available in English and will be available in five additional languages in the coming months (Spanish, Simplified Chinese, Tagalog, Vietnamese, and Korean).

The DFEH is planning to launch a similar online training for supervisors in California, who are required under Government Code section 12950.1 to complete two hours of training by January 1, 2021.

The training is available through DFEH’s website at:  https://www.dfeh.ca.gov/shpt/


It’s Time to Update Your Illness & Injury Prevention Program to Address

COVID-19 Prevention Measures

Every California employer is required to establish and implement an Injury and Illness Prevention Program (IIPP) to protect employees from workplace hazards, including infectious diseases. Employers are required to determine if COVID-19 infection is a hazard in their workplace. If it is a workplace hazard, then employers must implement infection control measures, including applicable and relevant recommendations from the Centers for Disease Control and Prevention (CDC), Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), and Coronavirus Disease 2019 (COVID-19): How to Protect Yourself & Others. For most California workplaces, adopting changes to their IIPP is mandatory since COVID-19 is widespread in the community. For more information about what to include in your IIPP, see https://www.dir.ca.gov/dosh/coronavirus and select the guidance applicable to your industry.


Privacy Implications in Collecting and Retaining COVID-19 Data

Question: What are some of the privacy implications for employers who ask an employee about his or her health conditions concerning COVID-19 and the retention of that information?

Answer:  As employers evaluate what measures to implement to address COVID-19 in the workplace, such as health questionnaires and on-site temperature measurements, employers must remember that the information they collect, and how they collect it, must be carefully controlled because that information is protected employee medical information.  Employers must continue to follow existing state and federal laws regarding confidentiality and employee privacy, especially as these pertain to medical information.

The Department of Fair Employment and Housing (“DFEH”) recently issued guidance on employment issues related to COVID-19. The guidance clarifies that employers may ask employees if they are experiencing COVID-19 symptoms and send employees home from work if they display COVID-19 symptoms. Moreover, employers may measure employees’ body temperature for the limited purpose of evaluating the risk that an employee’s presence poses in the workplace.  An employer may also ask why an individual did not report to work if the employer suspects an employee illness. These measures must be uniformly applied in a non-discriminatory manner, and the data collected must be maintained in a confidential medical file in a secure location like any other employee medical information. Access to the information should be limited to designated individuals.

The DFEH guidance also states that to comply with privacy laws, employers should not identify by name any employee who tests positive for, or is suspected to have, COVID-19.  Employers may notify affected employees of potential exposure to COVID-19, but without revealing the personal health information or identity of an employee who may be the source of the exposure.  The DFEH suggested notification is available at https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf

If an employer is addressing COVID-19 employee disability, accommodation, or leave issues under the Americans With Disabilities Act, Fair Employment and Housing Act, or the Family and Medical Leave Act, the employer should treat the COVID-19-related information the same way it treats other medical information it receives.

The Health Insurance Portability and Accountability Act (“HIPAA”) also safeguards employee health information by providing national standards for the protection of such information.  HIPAA applies to entities such as health plans, health care clearinghouses, and health care providers.  If a business or its business associates are governed by HIPAA, then HIPAA’s privacy rules apply to disclosures made by employees and other workers of such businesses.  HIPAA privacy requirements do not necessarily apply to employers who have medical information of employees pertaining to COVID-19, unless that business is otherwise subject to HIPAA.

The California Consumer Privacy Act (CCPA) requires covered businesses to provide a notice to California consumers explaining what personal information they collect and how that information is used, including health-related information.  Businesses that either 1) Have annual gross revenues over $25 million, 2) Buy, receive, sell, or share for commercial purposes the personal information of more than 50,000 consumers, households, or devices; or 3) Derive 50 percent or more of its annual revenues from selling consumers’ personal information are subject to the CCPA.  The CCPA notice requirement applies to information gathered about job applicants and employees.  Covered employers should review and update their CCPA notice to address the collection and use of information related to COVID-19.

The bottom line is that in trying to meet the challenge of ensuring employee protection from COVID-19, employers must also ensure the protection of employee medical information under multiple laws.