California’s Updated COVID-19 FAQs Call for Careful Decision Making

California employers must follow COVID-19 health and safety guidances including those from the federal Centers for Disease Control (CDC), the California Department of Public Health, and the California Division of Occupational Safety and Health (Cal/OSHA).

Employers with five or more on payroll must also avoid violating workplace discrimination protections, including this state’s  Fair Employment and Housing Act (FEHA). For instance, management cannot send workers home during a pandemic based on their Asian heritage or any other actual or perceived national origin.

To further help achieve this balance, the Department of Fair Employment and Housing (DFEH) has updated its “DFEH Employment Information on COVID-19” FAQs (July 24, 2020), suggesting among other things policy and protocols for health condition inquiries and reasonable accommodation for FEHA-protected “disability” conditions.

However, the agency’s suggestions do not altogether resolve conflicts between pandemic health directives designed to thwart infection’s spread and the privacy rights of individual workers.

Guidelines include for instance:

• Employers may ask employees if they are experiencing COVID-19 symptoms as long as management keeps the information confidential;

In keeping with privacy law, management also “should not identify” by name any employee in quarantine, who has tested positive for COVID-19, or has come into close contact with someone who has the virus.

However, employers also need to follow “local, state, and federal public health recommendations.”

This leaves management with the legitimate question of how they can protect co-workers from infection if a stricken employee should not be identified by name while local health directives may require such disclosure;

• Employers may require employees to wear personal protective equipment during the pandemic. Where an employee with a disability needs a related reasonable accommodation, for example to use non-latex gloves, the employer should provide these absent undue hardships;

• Employers must also strive to reasonably accommodate an employee who cannot come to work because of an underlying disability increasing his/her risk for severe COVID-19 related illness;

• The guidance points out that because age is not a disability, management is not required to reasonably accommodate employees based on their age alone. However, employers also must not discriminate against older employees.  “For example, an employer may not return only employees under age 65, even if the employer is doing so to protect its older employees from COVID-19 risks.”

Thus employers should consult with experienced legal counsel before implementing policies and procedures on how to keep workplaces safe and healthy while also protecting their workers’ civil rights.

See also:

• Fourth and Long – California’s Employer Playbook for a Safe Reopening (July 31, 2020)
• Older Folks are People Too – Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel (July 24, 2020)
• Take the Lead – Model Employee Handbook and Forms; COVID-19 Policies(July 17, 2020)
• Infection Protection – What Employers Can Ask in a Pandemic (March 25, 2020)

For more information about this guidance or other employment issues related to COVID-19, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

August 5, 2020