Questions from Employees Returning to Work

Question: As businesses begin to reopen, my employees are asking questions regarding their return to work.  What should I anticipate?

Answer: Naturally, as employees begin to return to their workplaces after weeks of sheltering in place under COVID-19 stay-at-home orders, they will have questions. When answering employee questions, be clear and consistent, but also recognize that you will need to remain flexible as guidance changes and we learn more about the coronavirus.  These are some of the common questions employees may ask:

1. Can I refuse to return to work?

Generally, employers have the right to require employees to return to work if the employer is permitted to return employees to the worksite, and the employer has taken the safety steps currently required by state and federal law.  If an employee who has been working remotely refuses to return, it is important to find out why because the employee may be eligible for Families First Coronavirus Response Act (“FFCRA”) leave or other medical or family care leave. Depending on the employee’s reasons for refusing to return, you may decide to allow the employee to continue to work remotely for another few weeks.

If an individual who was laid off refuses an employer’s offer to return to work, the individual is not entitled to a leave of absence because the individual is no longer your employee.  According to the Employment Development Department, individuals who refuse to accept work will normally be disqualified from receiving unemployment benefits unless their refusal is legally protected.  In all cases, it is important to communicate with employees and try to handle these situations with care and compassion.

2. How will my employer keep me safe from contracting the virus?

All employers are required to take steps to protect their employees from exposure to COVID-19, including performing a risk assessment and instituting a protection plan, and training employees on limiting the spread of the disease and how to perform self- screening.  All employers must implement control measures, screening, disinfectant protocols, and physical distancing guidelines. Additional steps vary by industry, and industry specific guidance can be found at the following link: https://covid19.ca.gov/industry-guidance/. Communication and enforcement of your company’s plan is critical in assuring employees that you have taken steps to ensure their safety according to current guidelines.

3. Does the company have the right to ask about my health and take my temperature?

Yes, employers are allowed to ask about coronavirus-related symptoms and to take employees’ temperatures.  Employers may also send employees home if they report to work with symptoms of COVID-19 and may ask employees who report feeling ill at work, or who call in sick, about their symptoms to determine if they may have COVID-19. These measures must be consistently implemented and the information must be treated as a confidential medical record. If temperature taking at the workplace is mandated, the time spent being tested and waiting for a test is considered compensable time.

4. What if a co-worker gets coronavirus? Will I be informed?

Yes, employees who have had contact with a co-worker who tests positive for the coronavirus should be informed, but the employer will not identify the ill co-worker by name because this is confidential medical information.  Employers should contact their local health department for further guidance.

As employers develop plans to return to a more “normal” workplace reopening, they should communicate with employees often and consistently.


Returning to (Adapted) Normal Business

Question:  I read that Governor Newsom is allowing California businesses to reopen.  What do I need to do to resume my business?

Answer:  On May 7, 2020, Governor Newsom announced that certain California businesses may reopen – with specific adaptations.  At this time, only certain retail (curbside pickup only), manufacturing, and logistics businesses have been approved for reopening, provided they implement activities to lower the impact of COVID-19 in the workplace.  Further, businesses in Monterey County should also comply with the County’s Orders for reopening, which may be more restrictive.

In conjunction with this announcement, Governor Newsom issued reopening guidance for businesses with the goal of having safe, clean environments for workers and customers.  For instance, Governor Newsom’s Guidance states that prior to reopening, all facilities must:

  1. Perform a detailed risk assessment and implement a site-specific protection plan;
  2. Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them;
  3. Implement individual control measures and screenings;
  4. Implement disinfecting protocols; and
  5. Implement physical distancing guidelines.

Businesses will be required to provide personal protective equipment (“PPE”) such as masks and hand sanitizer.  Additional PPE requirements will depend on the hazard posed to the worker in the specific workplace.  Prior to reopening, businesses should determine what PPE is required, inventory their stock, and maintain a sufficient supply.  An employee with a disability may need a PPE related reasonable accommodation (e.g., non-latex gloves), and employers should be prepared to provide these, absent undue hardship.  Businesses should also establish a regular cleaning schedule for common areas and provide cleaning supplies throughout the worksite for employees to sanitize frequently touched items (e.g., pens, counters, keyboards).  Employees should be reminded to avoid using other employees’ phones, desks, offices, or other work tools and equipment, when possible.

Currently, reopened businesses must also comply with social distancing guidelines and should plan ahead and take steps to implement social distancing measures.  For example, employers may consider the feasibility of increasing the physical space between workers in work and break areas; limiting or prohibiting in-person meetings; and implementing flexible work hours (e.g., staggered shifts).

Businesses that choose to conduct temperature checks of staff and visitors entering buildings should have a written policy and notification in place.  Employees should be reminded and encouraged to stay home if they are ill.  Any employee who reports to work and exhibits symptoms of COVID-19 should be separated from other employees and sent home.  In such situations, employers should notify those who had contact with the ill employee of their potential exposure, but should not identify the ill employee by name to ensure compliance with federal and state privacy laws.

Finally, employers that laid off and are bringing back their workforce must comply with re-hire requirements.  The requirement that employers provide employees with certain federal and state forms and pamphlets applies, even when rehiring a recently laid off employee.  Rehired employees may also be required to complete a new Form I-9.  Previously accrued and unused paid sick days must be reinstated for all employees rehired within 1 year, and employees must be allowed to use such days immediately.  There is currently no agency guidance on whether employers may conduct drug screens or criminal background checks on re-hires, and employers should consult with legal counsel before doing so.


Social Distancing Protocols for Essential Business Operations

Question:  As a small business owner, how can I ensure my employees’ and guests’ health and safety during continued operations?

Answer:  Monterey County (the “County”) established guidelines and rules for the continuation of certain essential and minimum basic business operations during the Novel Coronavirus Disease 2019 (“COVID-19”) pandemic.  On April 3, 2020, the County issued an updated Shelter in Place Order (the “Order”) which details mandatory Social Distancing Requirements for all individuals engaging in permissible business activities and requires such businesses to establish Social Distancing Protocols.  The Order will remain in effect until 11:59 p.m. on May 3, 2020.

Essential Business Operations.  The Order sets forth 28 categories of business operations which are deemed “essential”  including, but not limited to: restaurants and other facilities that prepare and serve food, but only for delivery or carry out; grocery stores/supermarkets, certified farmers’ markets/stands, food banks; stores selling essential products, such as pet supplies, hygienic products, household consumer products necessary for personal hygiene or the habitability, sanitation, or operation of residences; hardware stores; and laundromats, drycleaners, and laundry service providers.

            Minimum Basic Operations.  The Order allows non-essential businesses to engage in Minimum Basic Operations, which are defined as only those minimal activities necessary to maintain and protect the value of the business’s inventory and facilities; ensure security, safety, and sanitation; process payroll and employee benefits; provide for the delivery of existing inventory directly to residences or businesses; and other related functions.  Similarly, Minimum Basic Operations are permitted at the job site to facilitate remote work.

Social Distancing Requirements.  Social Distancing requires individuals to: maintain at least a 6-foot distance from other individuals who are not part of the same household or living unit; frequently wash hands with soap and water for at least 20 seconds, or use hand sanitizer; cover coughs and sneezes with a tissue or fabric; and avoid all social interaction outside the household when sick with a fever or cough.

Social Distancing Protocols.  The Order requires all Essential Businesses and those performing Minimum Basic Operations to prepare a Social Distancing Protocol to explain how the business is achieving the Social Distancing Requirements described above.  The County encourages businesses to use a form available at https://www.co.monterey.ca.us/home/showdocument?id=88419.

Social Distancing Protocols may include, but are not limited to:

  • Limiting the number of people who can enter the facility to ensure that everyone (workers and guests) can easily maintain a minimum 6-foot distance from one another at all times;
  • Marking minimum 6-foot increments establishing where individuals should stand in a line to maintain adequate social distancing;
  • Indicating whether the business provides hand sanitizer for employees and customers, and where the hand sanitizer is located;
  • Providing for contactless payment systems; and
  • Regularly cleaning and disinfecting high-touch surfaces, such as counters, tabletops, doorknobs, bathroom fixtures, toilets, phones, keyboards, and tablets.

The Social Distancing Protocol must be posted at or near the entrance of the facility and must be easily viewable by the public and employees. A copy of the Social Distancing Protocol must also be provided to each employee, including electronically for remote workers.

Penalties.  Failure to comply with any provisions of the Order – including failing to establish Social Distancing Protocols or continuing to operate non-essential businesses – may result in criminal and/or civil penalties.

Essential Businesses should enact the required Protocols right away to avoid violation of the Order.


The Families First Coronavirus Response Act

Question: Do I have to pay my employees for time off under the new Families First Coronavirus Response Act?

Answer: The Families First Coronavirus Response Act (FFCRA) was signed March 18, 2020 and is effective April 1.  As of March 31, the Department of Labor (DOL) has not issued regulations, but it has issued guidance for employers, available at https://www.dol.gov/agencies/whd/pandemic.

The FFCRA provides that employees of “covered employers” are eligible for:

  • Emergency paid sick leave (“EPSL”) (available to all employees regardless of how long they have worked for the employer):
    • Two weeks (up to 80 hours) at the employee’s regular rate of pay if he/she cannot work because he/she is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis;
    • Two weeks (up to 80 hours) at two-thirds the employee’s regular rate of pay because the employee cannot work because of a bona fide need to care for an individual (not necessarily a family member) subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or must care for a child (under 18) whose school/childcare provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a “substantially similar condition” as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
  • Paid Expanded Family and Medical Leave (“Expanded FMLA”):
    • Up to an additional 10 weeks at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, cannot work due to a bona fide need for leave to care for a child whose school/childcare provider is closed or unavailable for reasons related to COVID-19.

The FFCRA applies to private employers with fewer than 500 employees and public employers with 1 or more employees. The employer must look at the number of employees it has at the time of the request for the leave.

According to the DOL, if an employer closes a worksite before April 1, employees are not eligible for EPSL or Expanded FMLA, "whether your employer closes your worksite for lack of business or because it is required to close pursuant to a federal, state or local directive." If an employer closes the business while someone is on EPSL or Expanded FMLA, it must only pay for any of that leave used before it closed.

If an employer reduces an individual's hours or furloughs the worker due to a lack of work, the person is not entitled to EPSL or Expanded FMLA. According to the DOL, “This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.”  By contrast, an individual may take EPSL or Expanded FMLA if a Coronavirus-qualifying reason prevents him/her from working a full schedule. In all these circumstances the employee may be eligible for unemployment insurance benefits.

If your business is open and your employee would be working but must stay home to care for a child whose school/childcare provider is closed, that employee will be eligible for EPSL and may also be eligible for Expanded FMLA.

Employers that provide FFCRA required EPSL and/or Expanded FMLA are eligible for reimbursement of the costs of that leave through refundable tax credits.  Examples of the credits are included in the guidance at  https://www.dol.gov/newsroom/releases/osec/osec20200320.


Leave and Pay Issues Related to the COVID-19 Outbreak

Question: I own a small business that is heavily impacted by the COVID-19 situation. What are my obligations to my employees?

Answer: Business owners and employees are feeling the severe economic impact caused by the cancellation of events, quarantines, shelter in place, and social distancing. As of March 17, 2020 here are some common questions and answers related to leave and pay. Be aware that the federal Families First Coronavirus Response Act is pending and it will likely expand employer obligations and employee benefits related to the COVID-19 pandemic. Because of pending legislation and programs aiming to assist during this pandemic, check the links to the resources below for up to date information as new developments arise.

Can employees use paid sick leave for COVID-19 illness? Yes, the employee can use sick leave under the Healthy Workplace Healthy Families Act (HWHFA) and other accrued paid sick leave, vacation, or PTO. However, the employer cannot require the employee to use paid sick leave.

What if employees need time off to care for a sick child or family member? If an employee is eligible for sick leave under the HWHFA the employee may use that paid sick leave for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee’s family member. Preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities.

If an employer is covered by the Family Medical Leave Act and California Family Rights Acts and the employee is eligible, the employee may take up to 12 weeks of job protected leave to care for an eligible family member who has a serious health condition. You may also allow employees to use accrued vacation time in this situation.

Employees who are absent from work to care for a family member may be eligible for state paid family leave wage replacement benefits.

Can a healthy employee stay home to avoid getting COVID-19? It depends on government orders, the employer’s policies, and whether the employee’s absence is due to preventative care covered by the HWHFA. If the employee is not sick and is scheduled to work, absent a shelter in place order the absence may be treated as any other unscheduled absence. However, disciplining an employee for absence in this situation is not recommended. Employers should explore alternatives including telecommuting and allowing the use of paid vacation or unpaid leave.

Are employees entitled to time off if their child’s school or day care closes? California Labor Code Section 230.8 requires employers with 25 or more employees to provide up to 40 hours of leave to parents for reasons including a school or child care provider closure. The employee is required to use accrued vacation or personal leave, and if paid leave is exhausted the leave is unpaid.

What happens if I lay employees off or reduce their hours? Depending on the size of the employer, the WARN Act may require employers to provide 60 days notice of a lay off or face penalties. The state and federal WARN Acts are complex and you should seek legal counsel before implementing a mass layoff. Employees who are furloughed, have their work hours reduced, or become unemployed may be eligible for full or partial unemployment insurance benefits. The Governor’s Executive Order waives the one-week unpaid waiting period, so benefits can begin as soon as an employee is eligible.

For more information check the following resources:

https://www.labor.ca.gov/coronavirus2019/#chart

https://www.labor.ca.gov/coronavirus2019

https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm

https://www.dol.gov/agencies/whd/fmla/pandemic

https://www.congress.gov/bill/116th-congress/house-bill/6201/all-actions?KWICView=false


Workplace Privacy Under California Consumer Privacy Act

Question: I heard that California’s new privacy law applies to employers now.  What does this mean for my business?

Answer:  California’s new privacy law, the California Consumer Privacy Act (“CCPA”), is effective January 1, 2020.  Among other new protections, the law gives “consumers” the right to require that covered businesses delete their data, say no to the sale of their personal information, be free from discrimination, and seek legal action against businesses that violate these rights.  Since the CCPA’s passage in June 2018, it was unclear whether “consumers” include employees.  On October 11, 2019, Governor Newsom signed an amendment (AB 25) clarifying that employees are protected under the CCPA as “consumers” and giving covered employers an additional year to comply with most of the CCPA’s requirements.

The first question businesses should ask is whether the CCPA applies to them.  With some limited exceptions, employers must comply with the CCPA if they satisfy at least one of the following three criteria: (1) have annual gross revenues in excess of $25 million; (2) derive at least half of their annual revenues from selling consumers’ personal information; or (3) handle, buy, share, or sell personal information belonging to at least 50,000 California residents annually.   Although the law covers large employers, even some small businesses might find themselves covered by the CCPA if they collect information about who is using their websites.  For example, a small business that has a website with an average of 137 unique visits per day and collects data about the devices or consumers who are accessing the site will  likely be “handling” or “sharing” the personal information of 50,000 California residents annually, and therefore be covered by the CCPA.

AB 25 gives covered employers until January 1, 2021 to comply with all the CCPA’s requirements pertaining to employee data except for two requirements that employers must comply with now.

First, covered employers must ensure they have implemented reasonable physical and electronic security measures to safeguard the personal information of employees and job applicants.  If a data breach occurs due to a failure to implement reasonable security measures, an affected employee or applicant can file an individual lawsuit or a class action and potentially recover up to $750 per consumer per data breach incident or their actual damages, whichever is greater.

Second, covered employers must inform all employees and job applicants of the categories of personal information the business collects about them and the business reasons for which the information will be used.  This disclosure need only list the “categories” of information collected.  For example, a business could list “Education Information” as a category, and the business reason could state “Evaluate an individual’s qualification and suitability for hire, salary level, and potential promotion to a new position in the company.”  This disclosure must be made before or at the time you receive personal information of any employee or job applicant.

Unless the California legislature makes additional changes to the CCPA soon, covered employers will have to comply with all the CCPA’s requirements by January 1, 2021.  Even though enforcement by the California attorney general does not begin until July 1, 2020, employers doing business in California should immediately determine whether the CCPA applies to them and if it does, determine what steps they should take to comply.


New Form I-9

Question:  I heard there is a new I-9 form. What are the new requirements, and what do I need to do to make sure my company is complying?

Answer:  All employers are required to complete a Form I-9 for every newly hired employee.  Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States.  On the first day of employment, the employer must provide the Form I-9 to the employee and the employee must complete Section 1 of the I-9 that same day.  Section 1 includes the employee’s name, address, date of birth, and an attestation of the employee’s employment authorization status that the employee must complete and sign under penalty of perjury.

The employee must also present to the employer one or more original unexpired documents establishing the employee’s identity and employment authorization within three business days of the employee’s first day of employment.  The I-9 lists acceptable documents to meet this requirement.  Once the employee has presented the original documents, the employer must physically examine each one to determine if it reasonably appears to be genuine and to relate to the employee.  The person examining the documents must complete and sign section 2 of the I-9 certifying that he or she has examined the documents, that they appear to be genuine and to relate to the employee, and that to the best of that person’s knowledge the employee is authorized to work in the United States.

The United States Citizenship and Immigration Services (USCIS) recently issued a new version of the I-9 dated October 21, 2019.  Employers should use this form with new hires but should not reverify current employee identity and employment authorization just because a new version of the I-9 is issued. In fact, employers are not permitted to reverify employment authorization for current employees unless the employee’s employment authorization document expires.

The new I-9 contains minor changes that are only visible when completing the form I-9 on a computer.  The paper version of the I-9 is unchanged from the prior version. There are, however, important changes to the I-9’s instructions.  Such changes include:

  • Clarification on who can act as an authorized representative to complete the I-9 on behalf of the employer: Employers may designate anyone to be an authorized representative to complete Section 2, but the employer is still liable for any violations committed by the designated authorized representative.
  • Clarifications pertaining to acceptable documents: When entering document information in the List A, B, and C columns, employers do not need to enter "N/A" in the columns that are not being used. For example, if you enter document information in the List A column, you should not enter document information or N/A in the List B or List C columns.

Employers may continue to use the previous edition of the I-9 (Rev. 07/17/2017 N) for new hires through April 30, 2020. Use of the new I-9 form will become mandatory beginning May 1, 2020.   The new form bears the form date in the lower left corner (10/21/2019) and the expiration date in the upper right corner (10/31/2022.)  Employers must strictly comply with the I-9 requirements. Failure to properly complete, retain and store employee I-9’s may trigger I-9 inspections or audits that may result in civil penalties or even criminal prosecution.   For more information visit https://www.uscis.gov/i-9


Avoiding Missteps in the Interactive Process

Question: One of our employees informed us that she has a disability.  We have accommodated her by providing her with a leave of absence.  Our policy provides for a finite leave of absence.  If she asks for an extension of leave, can we fire her?

Answer:  Under the California Fair Employment and Housing Act (FEHA), discrimination, harassment, and retaliation against employees with disabilities are prohibited.  The FEHA requires employers to provide reasonable accommodations for applicants and employees who, because of a qualified disability, are unable to perform the essential functions of their job, unless providing the accommodation would be an undue hardship to the employer. Employers must engage in a timely, good faith interactive process with applicants or employees in need of reasonable accommodation to determine the essential functions of the job, whether the employee can perform them with or without reasonable accommodation, and possible accommodations.  It is important for employers to approach the interactive process on a case-by-case basis and consider different forms of reasonable accommodation for the individual, which can include a leave of absence if it is reasonably likely to allow the employee to return to work without imposing an undue hardship on the employer.

A recent case illustrates that a legitimate company policy on leaves of absence, if mistakenly applied, may expose employers to liability for disability discrimination, and that there is no “bright line” duration for medical disability leaves under the FEHA.

In Glynn v. Superior Court (2019), a pharmaceutical representative, whose job required driving to and from customer locations, was on temporary disability leave due to an eye condition that prevented him from driving safely. After receiving a notice stating that the employee was eligible for Long Term Disability (LTD), a staff member discharged the employee because she incorrectly believed the employer’s policy required termination when an employee was eligible for LTD.  It was undisputed that the employee could have returned to work in a non-driving position and that during his leave he applied for several open positions that did not require driving.  Nevertheless, he was not reassigned. The employee never applied for LTD and upon termination, immediately notified the employer of this, and that he could work in any position that did not require driving.

The employer should have responded by timely engaging in the interactive process to determine if it could accommodate the employee in another position, or continue his leave as a reasonable accommodation. Instead, nine months after termination the company acknowledged the mistake and offered to reinstate the employee with full back pay and benefits while he identified a job for which he was qualified within the company. The employee rejected the offer.

The employee sued the employer for disability discrimination.  After the trial court dismissed the disability discrimination claim, the employee appealed, and the California Court of Appeals held that even though the staff member believed that she was applying company policy correctly, the employer may still be liable for disability discrimination.

This case demonstrates that when an employee with a disability requests an accommodation, the employer should promptly engage in the interactive process and carefully evaluate reasonable accommodations.  It is prudent to have the human resources department or legal counsel review the situation before discharging a disabled employee. Helpful guidance on the interactive process and reasonable accommodation is available at https://www.dfeh.ca.gov/reasonable-accommodation/  and https://askjan.org/


Limitations On No Rehire Provisions

Question:  I want to settle a lawsuit with a former employee.  Can I include language in the settlement agreement that says the former employee agrees that I will never rehire him?

Answer:  No.  Under new Code of Civil Procedure section 1002.5 (AB 749), effective January 1, 2020, a settlement agreement or severance agreement in an employment dispute cannot contain a provision prohibiting, preventing, or restricting an “aggrieved person” from obtaining future employment with the employer, parent company, subsidiary, division, affiliate, or contractor of the employer.  The new law explicitly states that a “no rehire” provision is void as a matter of law and against public policy.  One reason for the new law is to prevent the situation where an employee reports unlawful harassment but then faces the prospect of having to give up his or her job to settle the claim.

The law defines an “aggrieved person” as someone who has filed a claim against his or her employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process.   This definition prohibits the use of “no rehire” provisions in settlement agreements that resolve employment disputes filed in forums such as the courts, the Division of Labor Standards Enforcement (“DLSE”), the Department of Fair Employment and Housing (“DFEH”), or an alternative dispute resolution forum.

The new law also prohibits the use of a “no rehire” provision when an employee has alleged a claim using an employer’s “internal complaint process.”  This term is not specifically defined.  Consequently, employers should be mindful of their complaint procedures and determine whether such procedures are, or could be, considered an “internal complaint process.”

An employer may include a “no rehire” provision in a severance or separation agreement if the employee has not filed a claim against the employer. Also, an employer can include a “no rehire” provision in a settlement agreement if the employer has made a good faith determination that the settling employee engaged in sexual harassment or sexual assault.

“No rehire” provisions in settlement agreements were often used to make it clear that the settling former employee could not apply for a job and then bring a claim for retaliation if he or she was not offered the job.  While the new law eliminates the use of “no rehire” provisions in most situations, this does not automatically mean that an employer has to continue to employ a current aggrieved employee, or rehire a former aggrieved employee.  Rather, the employer can discontinue employment or not hire the aggrieved person if the employer has a legitimate, non-discriminatory, or non-retaliatory reason for doing so.  Employers should ensure that they consistently apply their performance evaluation procedures and regularly document employee performance issues so that if they choose to discharge an employee and then not rehire him or her, they will have sufficient documentation to support that decision.

Employers should review their severance agreements and settlement agreements to ensure that they comply with Code of Civil Procedure section 1002.5.  Some options to consider are to not use a “no rehire” provision in any situation; or include the provision in those limited circumstances where the new law does not apply.


Workplace Investigations and Confidentiality

Question:  I just completed a workplace investigation. Unfortunately during the investigation there was a lot of discussion and gossip about the investigation, which had a negative impact on the investigation and my employees.  I am considering implementing a policy that prohibits employees from discussing workplace investigations with anyone other than the investigator, and establishes disciplinary action for violations.  Is this permissible?

Answer:  California law requires employers to promptly investigate employee claims of unlawful workplace harassment, discrimination, and other employee misconduct.  Employers are required to keep such investigations confidential to the extent possible.  Most workplace investigators will tell you that employees feel more comfortable disclosing truthful information when they know their statements are confidential.  Thus it would seem that a policy like the one you propose would be appropriate.

However, in recent years the National Labor Relations Board (the “Board”) has ruled that blanket confidentiality policies that prohibit employees from discussing investigations of employee misconduct act to “chill” employees’ rights under Section 7 of the National Labor Relations Act (the “Act”).  Section 7 of the Act applies to union and non-union employees and provides employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities.”  In its 2015 Banner Estrella opinion, the Board found that mandatory confidentiality policies and instructions restricted employees’ exercise of their Section 7 rights, and placed the burden on the employer to demonstrate, on a case-by-case basis, that the need for confidentiality outweighed employees’ Section 7 rights.

On December 16, 2019 the Board issued a decision in Apogee Retail LLC d/b/a Unique Thrift Store, stating the rule in Banner Estrella was “deficient” and was overruled.  In Apogee Retail, an employer maintained two confidentiality rules regarding workplace investigations.  The first rule required employees to “cooperate fully in investigations and answer any questions truthfully and to the best of their ability,” and that both reporting persons and interviewees were “expected to maintain confidentiality.”  The second rule provided for disciplinary action when employees engaged in unauthorized discussions with other employees about the investigations.

The Apogee Retail opinion states that rules requiring confidentiality during open, active workplace investigations are presumptively lawful.  However, confidentiality policies that are not limited on their face to open investigations, i.e., apply post-investigation, require a case-by-case analysis of their impact on employees’ Section 7 rights.  This decision is ultimately a win for employers.  It is important to keep workplace investigations confidential.  Doing so allows the employer greater access to information by minimizing employee fear of reprisal from coworkers for participating in the investigation, and makes it easier to maintain the integrity of a workplace investigation.

So what does the Board’s decision mean for your proposed policy? The Apogee Retail ruling means your policy is likely lawful, as long as your confidentiality rules only apply during open and active workplace investigations.    However, if you intend to enforce the confidentiality policy after the close of an investigation, you will need to analyze each investigation and be prepared to prove that the legitimate business reasons for requiring confidentiality post-investigation outweigh any adverse impact on employees’ Section 7 rights to discuss their wages, hours and working conditions.


Is Gluten Sensitivity a Disability?

Question: I am a restaurant owner and we have seen an increasing number of guests with gluten sensitivity.  We offer gluten-free options on our menu to accommodate these guests.  Does that meet our legal obligations?

Answer:  In a recent federal case, the U.S. Court of Appeals found that gluten sensitivity may be a disability under the Americans with Disabilities Act (ADA).

The U.S. Congress enacted the ADA to remedy discrimination against disabled individuals and provide clear, enforceable standards addressing such discrimination. Title III of the ADA provides that no individual shall be discriminated against on the basis of his or her disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. The ADA similarly prohibits employment discrimination on the basis of workers’ disabilities.

In J.D. v. Colonial Williamsburg Foundation the Court of Appeals found that a restaurant violated the ADA when its staff refused to allow a gluten-sensitive child – who was on a school trip with his class – to eat his home-prepared gluten-free meal inside the restaurant because the restaurant’s policy banned the consumption of outside prepared food in the restaurant. Instead, the restaurant manager gave the child three options: 1) Let the chef prepare a gluten-free meal; 2) Eat his pre-prepared meal off of the restaurant property; or 3) Stay inside the restaurant with his class and not eat.

The restaurant was sued and requested that the lawsuit be dismissed arguing it was following health and safety codes that prohibited outside food from being consumed inside the restaurant, that if offered to prepare a gluten-free meal, and that gluten sensitivity is not a disability.

The ADA defines a “disability” as “a physical or mental impairment that substantially limits one or more major life activities.”  In analyzing whether gluten sensitivity is a disability, the court emphasized that the only medically accepted treatment for the condition is a strict gluten-free diet, that eating is a major life activity and, as such, that gluten sensitivity could be considered a disability.

The court then looked at whether the restaurant’s actions constituted discrimination.  Discrimination under the ADA occurs when there is a failure to make reasonable modifications in policies, practices, or procedures when such modifications are necessary for a business to afford its goods, services, or privileges, to an individual. Businesses must contemplate three inquiries when determining whether to accommodate an individual:

  1. Is the requested modification "necessary" for the disabled individual;
  2. Is it "reasonable"; and
  3. Would it "fundamentally alter the nature" of the business’ services.

In its analysis, the court noted that the child had regularly gotten sick from “gluten-free” food prepared by restaurant kitchens.  Additionally, this restaurant had previously made exceptions to its rule prohibiting outside food.  The court held that, arguably, bringing a gluten-free meal into the restaurant was necessary for the child; the request was reasonable since it cost nothing to the restaurant; and it could be argued that allowing him to eat the gluten-free meal in the restaurant did not alter the nature of the restaurant’s services.  The Court of Appeals sent the case back to the trial court for further proceedings.

This case highlights that when faced with a customer or employee requesting an accommodation for a disability, it is important for a business to analyze each request on a case-by-case basis.


Employee Handbook Alert - New Law Requires Employers to Develop & Implement a Lactation Accommodation Policy

Question: Are there any new employment laws that will require me to revise my Employee Handbook in 2020?

Answer: Yes.

One of these new laws is Senate Bill (SB) 142, which expands lactation accommodation requirements for employees who wish to express breast milk during the work day.   This new law applies to all employers. There are two major implications for California employers. First, all employers are required to develop and implement a lactation accommodation policy.  Second, employees are permitted to take a “reasonable amount” of break time to express milk.  Employers who have existing lactation accommodation policies in their employee handbooks will need to revise them, and employers who do not have a lactation accommodation policy will need to develop and implement one.

SB 142 requires the employer to provide a lactation room close to the employee’s work area, shielded from view and free from intrusion, safe, clean, and free of toxic or hazardous materials.  The lactation room cannot be a bathroom. The lactation room must contain seating, a surface to place a breast pump and other personal items, and access to electricity or alternative power devices.  The employer must provide access to a sink with running water and a refrigerator or other cooling device suitable for the employee to store breast milk close to the employee’s workspace.

Where a multipurpose room is used for lactation, among other uses, the use of the room for lactation shall take precedence over the other uses, but only for the time it is in use for lactation purposes. Employers may designate a lactation location that is temporary due to operational, financial, or space limitations.  Employers in a multitenant building or multiemployer worksite may comply with the law by providing a space shared among multiple employers within the building or worksite if the employer cannot provide a lactation location within the employer’s own workspace.

The employer’s lactation accommodation policy must contain the following:

  • A statement about an employee’s right to request lactation accommodation.
  • The process by which the employee makes the request.
  • An employer’s obligation to respond to the request.
  • A statement about an employee’s right to file a complaint with the Labor Commissioner for any violation of the lactation accommodation law.

There are special provisions for agricultural employers.  Additionally, employers with fewer than 50 employees may apply for an exemption from one or more of the requirements if it can demonstrate that a requirement would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. However, even if an exemption is granted the employer must still make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.

The penalties for non-compliance are significant. Denial of reasonable break time or failure to provide adequate space to express milk will now be deemed a failure to provide a rest period in accordance with state law. The Labor Commissioner may assess civil penalties.

The text of this new law is available on the Legislature’s website at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB142.  Be sure to update your employee handbook with this important new policy and comply with the lactation accommodation requirements.