On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
LAWSUIT PREVENTION FOR EMPLOYERS
Essential Legal Issues For Employers
Pursuant to the “Essential Infrastructure” exemption applicable to most California counties, many employers are continuing their operations, at least in part. For questions about this exemption, please contact my office.
- COVID-19 Symptoms To Watch For:
Mild to severe respiratory illness, including fever, cough and difficulty breathing. The Center for Disease Control (“CDC”) states that symptoms may appear in as little as two days, or as long as 14 days after exposure to the Coronavirus.
- How is the COVID-19 Coronavirus spread from one person to another?
The virus is spread from one person to another through small droplets from the nose or mouth when infected persons cough or exhale. The droplets come to rest on surfaces in close proximity to the infected individual. Third parties are infected by touching these surfaces, and then touching their eyes, nose and/or mouth. This explains the importance of co-employees remaining at least three, and preferably six, feet away from others.
- Can employees refuse to report to work for fear of infection?
Employees are justified in refusing to report to work only if they reasonably believe they are in imminent danger, Section 13(a) of the Occupational Safety and Health Act defines “imminent danger” to include conditions “reasonably expected to cause death or serious physical harm immediately…” Obviously, if employers are conducting themselves prudently, this demanding standard is unlikely to be satisfied.
- What happens if an employee appears to be sick in the workplace?
If employees have a fever, a dry cough or difficulty breathing, medical attention is indicated. Employers are encouraged to err on the side of caution by protecting the workforce generally from exposure to the virus, while training supervisors to avoid overreacting. Employers are permitted to request that sick employees seek medical attention, including a test for COVID-19. The CDC states that employees who show symptoms consistent with influenza during a pandemic should be immediately separated from other employees and depart the workplace. The EEOC has confirmed that instructing sick employees to go home is permissible, and not disability-related if the symptoms are consistent with those associated with the COVID-19 Coronavirus or the flu. Employers can force employees to leave, if they refuse.
- Protecting those interacting with sick employees:
Prudence dictates that those interacting with sick employees may be exposed to the virus, given the possibility that sick individuals may cough or sneeze during an interaction. Personal Protective Equipment (PPE), including face masks, eye/face protection, gowns, gloves and approved N95 masks or respirators, may be indicated. Further information is available at the Cal-OSHA website: https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html
- What if an employee has a suspected or confirmed case of COVID-19?
After being interviewed, using the precautions referenced, the sick employee should be sent home immediately, after identifying all co-workers with whom he/she worked in close physical proximity (three to six feet) during the previous 14 days. All such employees should be quarantined for at least 14 days, without identifying the employee suspected of being infected. This, and all related medical information must be treated as confidential.
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.