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.