On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
LAWSUIT PREVENTION FOR EMPLOYERS
A new and highly-contagious virus, first identified in China in late 2019, has quickly spread throughout the world, and has now reached the United States. The new coronavirus, COVID-19, is a pneumonia-like infection which presents with symptoms including fever, dry cough and difficulty breathing.
The Corona phenomenon is expected to implicate every aspect of the employment relationship. For example, employees are entitled to utilize paid sick leave benefits to care for themselves and designated family members. In addition, Kin-Care laws allow employees additional time off to care for themselves and family members, and to apply one-half of any unused vacation benefits for that purpose.
Disability discrimination laws, and the California Family Rights Act may provide for still more time off to “reasonably accommodate” for the physical disability of an employee, or the “serious health condition” of the employee and family members. Employers who discipline employees within 30 days of requesting sick leave are subject to a legal presumption of unlawful retaliation.
Based on these examples alone, unwary employers face serious legal problems if illness-related issues are mishandled. Accordingly, no employee should be denied leave, or disciplined for illness-related reasons, without a careful evaluation of laws that may apply. Among the personnel policies that are directly impacted by the coronavirus include:
Arbitration, Sick Leave, Equal Employment, Workplace Harassment, Lactation Accommodation, Leaves of Absence, Disabilities Discrimination, including the duty to reasonably accommodate, Grooming Standards, Family and Medical Leave/California Family Rights Act, Overtime Compensation, Travel Time, Rest/Meal Breaks, Workers’ Compensation, Itemized Wage Statements, Employee Privacy Rights, Employment Benefits, Unemployment Benefits, Telecommuting, Remote Work, Confidentiality of Medical Information, Infectious Diseases in the Workplace, Workplace Safety and Kin-Care, among many others.
The ability of employers to address illness-related issues with maximum flexibility, and to defend resulting legal disputes will depend in large measure on the quality of written policies that are in place when these issues, such as a request for leave, arise. Consequently, it is imperative that employee handbooks and related documents be updated to reflect the new legal terrain facing every California employer. My office can provide these immediately, and identify any existing areas of legal vulnerability.
PLEASE NOTE: As a community service, my office is offering a complementary consultation to employers seeking expert guidance on these and related issues.
In the meantime, please consider the following as a means of preparing for the emergency situations every employer is virtually certain to confront.
If employees appear to be ill: If employees develop a fever or difficulty breathing, employers are encouraged to err in favor of caution. However, this must be balanced with instruction to prevent supervisors from overreacting, causing unwarranted panic. Employers may ask such employees to seek medical attention, including testing for COVID-19. The Center for Disease Control (CDC) states that employees exhibiting symptoms of influenza at work should leave the workplace. Based on precedent established with the H1N1 virus, employers may require workers to go home if they exhibit symptoms of the COVIS-19 coronavirus or flu.
Can employers insist on taking the temperature of suspected victims? Taking an employee’s temperature may be unlawful if it is not job-related and consistent with business necessity. This legal analysis is fact-specific and will vary, depending on the situation. The EEOC states that during a pandemic employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic constitutes a “direct threat.” If COVID-19 coronavirus becomes widespread in the community, according to the CDC, state or local health authorities, employers would probably be authorized to take an employee’s temperature at work.
What if an employee has tested positive for COVID-19? The infected employee and employees who worked closely with him/her should be sent home for a 14-day period, to prevent the infection from spreading. Be sure the infected employee identifies all individuals who worked within a proximity of three to six feet of him/her in the prior 14 days. These are the employees who will be required to remain away from work. Care must be taken to protect the identity of the infected employee, to avoid liability for violating the confidentiality of medical information. If COVID-19 becomes severe, inquiries into employee symptoms, even if disability-related, are deemed justified by the EEOC as a “reasonable belief based on objective evidence that this severe form of pandemic influenza poses “direct threat.” Employers must maintain all information about employee illnesses as a confidential medical record in accordance with the Americans With Disabilities Act, and corresponding California law.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over 38 years. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives. He has a remarkable record of success: Not one employer-client acting on his advice has been sued in over 38 years.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/
This newsletter is not intended as a substitute for legal advice and its content is provided for discussion purposes only. Any suggestions or recommendations must be assessed by competent legal counsel to be sure the unique requirements of each workplace are properly considered.