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Don’t Delete Your Lyft or Uber Apps Before October 2020, and Maybe Not Until May 2021; Appellate Court Grants Short Stay of Order Regarding Misclassification of Drivers

Posted in Employment Contracts and Agreements, Labor Law, Wage & Hour

A ruling today by an appellate court gives ride-sharing companies Lyft and Uber roughly two more months to treat their drivers in California as independent contractors.  That ruling follows a recent decision by a trial court in San Francisco that made national news by concluding that those companies had been misclassifying their drivers as non-employees under California law.

The San Francisco County Superior Court issued an injunction on August 10, 2020, ordering Lyft and Uber to begin classifying its California drivers as employees, rather than independent contractors, within ten days.  Complying with that order would require those companies, among other things, to start paying those drivers minimum wage and applicable premium pay for overtime hours.

Lyft and Uber each appealed that order.  In so doing, they threatened to abandon their operations in the Golden State immediately unless the courts stayed the injunction requiring drivers to be classified as employees.  The trial court refused to stay its order.  Today, however, the Court of Appeal ruled (in Case Nos. A160701 and A160706) that the injunction will not be enforced pending the outcome of the two companies’ now-consolidated appeals.

In most civil cases, it generally takes anywhere from one to two years after a litigant appeals before a California appellate court sets the date for the oral argument.  In some cases, the California Court of Appeal has been known to take as long as five years after the notice of appeal to schedule oral argument.  The date of oral argument is important because the California Court of Appeal cannot issue a decision before holding an oral argument if any party requests such a proceeding.

However, the drive on appeal in this case promises to be much shorter.  California’s First Appellate District ordered an expedited briefing schedule, barred any extensions of time except for extraordinary circumstances, and set oral argument to take place less than two months from now, on October 13, 2020.  This all but ensures that, if this briefing and oral-argument schedule is maintained, a decision will be issued no later than mid-January 2021.  Accordingly, the injunction could be on hold until what lawyers and the courts call “the remittitur” issues to the trial court as late as late May 2021.

That is because Article VI, section 19, of the California Constitution bars any judge from being paid a salary “while any cause before the judge remains pending … for 90 days after it has been submitted for decision.”  Section 68210 of the California Government Code also prohibits a judge from being paid a salary unless the judge signs “an affidavit stating that no cause before him [or her] remains pending … for 90 days after it has been submitted for decision.”  A civil case in the Court of Appeal is submitted and becomes pending “when the court has heard oral argument or approved its waiver and the time has expired to file all briefs and papers.”  (Cal. Rules of Court, rule 8.257, subd. (d).)

If the appellate court upholds the trial court’s judgment, it will take effect once the remittitur issues (which take approximately 100 days, unless the appellate court grants rehearing or the California Supreme Court grants review).  Lyft or Uber would have to ask the California Supreme Court to extend the stay of enforcement at that time.

Still, persuading the high court to grant such a reprieve could be difficult.  Indeed, it was the Supreme Court’s landmark ruling just two years ago, in Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, that spurred the state Legislature to pass A.B. 5.  That decision and its resulting legislation drastically curtailed the ability of California employers to classify workers as independent contractors.

Amidst all this litigation, voters will be asked to consider a ballot initiative this November, Proposition 22, that would overturn the Dynamex decision and A.B. 5.  If that ballot fails to pass, Lyft and Uber will be required to comply with the injunction within no more than 30 days after issuance of the remittitur in the appeal, which may be as late as May 2021.  Of course, if voters pass Proposition 22, this litigation may be moot.  Stay tuned, passengers in this case could be in for a bumpy ride.

The Continuing Spread of Employee Lawsuits Related to COVID-19

Posted in Disability Discrimination, Discrimination, Employee Privacy Rights, Labor Law, Retaliation and Wrongful Termination, Wage & Hour

A blog we published here on May 28, 2020, warned that whistleblower, disability and leave claims against employers may reach a fever pitch as workplaces begin reopening from the COVID-19 shutdown.  A recent audit by the U.S. Department of Labor Office of Inspector General (“OIG”) confirms that some of those types of claims already are spiking.

That OIG report, dated August 14, 2020, and made public this week, found that increases in virus-related complaints may severely impair the ability of the federal Occupational Safety and Health Administration (“OSHA”) to investigate such claims promptly.  “We found the pandemic has significantly increased the number of whistleblower complaints OSHA has been receiving,” the report stated.

In particular, the report indicates that the pandemic has resulted in a 30-percent jump in whistleblower complaints during its first four months as compared to the same period in 2019.  OSHA received about 4,100 whistleblower complaints from February through May 2020, according to the OIG report, and about 1,600 of them were related to COVID-19; for example, claims that an employer retaliated against an employee for reporting violations of rules requiring social distancing or personal protective equipment (“PPE”).

Employees who suffer adverse job actions after reporting such violations to a supervisor or a governmental entity in California are not restricted to filing an OSHA complaint.  Instead, those employees can retain a lawyer and sue their employers for damages in civil court.

At the same time, employers may see an increase in disability or leave claims, or even other types of discrimination claims, as they reopen their businesses or further restrict their operations in response to the pandemic.  Thus, California employers should consider taking the following four steps to reduce the incidence of such costly lawsuits:

First, do not violate or direct your employees to violate governmental shelter-in-place, social-distancing, sanitary or PPE restrictions or regulations.

Second, whenever making a termination decision, be sure it is for reasons that have absolutely nothing to do with the employee’s refusal to violate some public policy (e.g., a statute or regulation) or the employee’s complaints about reasonably perceived violations of some public policy.

Third, take every request for a disability accommodation or leave of absence seriously and analyze each one independently on its own merits.  In that regard, be sensitive to actual or perceived disabilities, do not make medical assumptions, work hard to identify and implement reasonable accommodations for disabled employees, and be vigilant in guarding against harassment of employees on the basis of some perceived or actual medical condition.

Fourth, make certain that personnel decisions have nothing to with protected classifications (e.g., age, race, gender, religion) and carefully analyze how decisions may impact protected classes of employees.

Even these steps cannot completely immunize employers against all these types of lawsuits, yet failing to adopt such protective measures probably will increase the risk of exposure to these afflictions.  Obtaining early legal advice also may decrease the frequency or cost of these exorbitant types of lawsuits.

The CDC’s Updated Guidance Expedites the Time In-Home COVID-19 Patients Can Return to Work

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations

The CDC has issued new guidance for in-home patients diagnosed with COVID-19, including lowering the number of days the patient must remain isolated after being fever-free. The CDC previously recommended that “at least 72 hours” pass since the last fever without the use of fever-reducing medication before ending self-isolation. Noting “accumulating evidence” and ongoing research into COVID-19 treatment, the CDC lowered the recommended isolation to “at least 24 hours.”

Researchers have further reported that people with mild to moderate COVID-19 symptoms remain infectious for no longer than 10 days after their symptoms begin, while those who are hospitalized with more severe symptoms and/or severely immunocompromised conditions can remain infectious no longer than 20 days after their symptoms begin.

Based on these and other findings (detailed more fully here), the CDC updated its recommendations for discontinuing home isolation. If an employee is diagnosed with COVID-19, or the doctor believes they have COVID-19, and the employee was directed by a doctor to care for themselves at home (or otherwise outside a hospital setting, e.g. in a hotel, dormitory or isolation facility), the new CDC guidance is that such persons may discontinue isolation under the following conditions:

  • At least 10 days have passed since symptom onset, and
  • At least 24 hours have passed since resolution of fever without the use of fever-reducing medications, and
  • Other symptoms have improved.

As with most other CDC guidance, this change may be adopted by state and local health departments so it is wise to check with your local, county and state health departments for further direction.

The DOL’s New Model FMLA Notices and Forms

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations

On July 16, 2020, the DOL issued new model FMLA notices and forms with a June 2020 revision date.  The look of the notices and forms are somewhat different from previous versions but there are not a lot of substantive changes.  The DOL also issued some FAQs in connection with the release of the updated forms explaining that the FMLA does not require the use of any specific form or format, and that even though the DOL revised the FMLA forms to make them easier to understand, the revised forms convey and collect the same information which can be provided in any format.

The DOL’s FAQs also address the following questions:

Can my employer require me to provide a new certification, using the revised form, when I have already provided the required FMLA information using the old certification form?

No. You can provide the required information contained on a certification form in any format. If you used the old certification forms to provide your employer with the required FMLA information, you do not have to provide your employer with the same FMLA information using the revised certification forms.

Can my employer make changes to the FMLA forms?

Your employer may use the WHD prototype forms or create their own version of the forms containing the same basic information. However, an employer that requests a medical certification may request only information that relates to the serious health condition for which the current need for leave exists, and no information may be required beyond that specified in the FMLA regulations. See 29 CFR 825.30629 CFR 825.307, and 29 CFR 825.308.

Do I have to use my employer’s certification forms?

Employers must accept a complete and sufficient certification, regardless of the format. The employer cannot reject a certification that contains all the information needed to determine if the leave is FMLA-qualifying. The employer cannot refuse:

    • A fax or copy of the certification;
    • A certification that is not completed on the employer’s standard company form; or
    • Any other record of the medical documentation, such as a communication on the letterhead of the healthcare provider.

The expiration date of the DOL forms has passed, are they still effective?

Yes. The content of the information contained within the optional-use DOL form is still applicable, regardless of the expiration date. The expiration date on the DOL forms is related to the collection of information as required by the Office of Management and Budget (OMB), and not relevant to the content of the required information.

Where do I send the completed certifications or notices?

Do not send any completed certifications or forms to the U.S. Department of Labor, Wage and Hour Division. The employer should provide the required notices to the employee seeking leave. Completed certification forms should be given to the employee to provide to the employer, as it is the employee’s responsibility to provide the employer with the completed certification.

For more information about the DOL’s updated FMLA notices and forms, or to obtain copies, go to:

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and your family good health during these challenging times.  If we can assist you in any of your employment law needs, feel free to reach out to us.

California’s COVID-19 Employer Playbook for a Safe Reopening

Posted in Labor Law, New Legislation and Regulations, Wage & Hour

The California Department of Public Health (“CDPH”) issued its “COVID-19 Employer Playbook” on July 24, 2020 in an effort to provide employers with a comprehensive guide related to COVID-19 as employers reopen their business. According to the CDPH, by following the Employer Playbook, employers will be able to do their part in reducing the risk and spread of COVID-19 in the workplace, and ensure that California businesses stay open. The subjects covered in the Playbook include how to open safely; what to do if there is a case of COVID-19 in the workplace; worker education; and enforcement and compliance. The Playbook contains many links to various employer and worker resources, as well as case studies to help illustrate the importance of implementing proper social distancing and safety measures.

You can obtain a copy of the CDPH’s Employer Playbook at:–en.pdf

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and yours health and safety during these challenging times.  If we can assist you with your employment law needs, please feel free to reach out to any one of us.

Two Important U.S. Supreme Court Decisions for Religious Employers (and Employers Morally Opposed to Birth Control)

Posted in Discrimination, Labor Law, New Legislation and Regulations

The U.S. Supreme Court handed down two decisions yesterday that affect religious employers.

In the first, Our Lady of Guadalupe School v. Morrissey-Berru, the Court held that the “so-called ministerial exception” applies more broadly, preventing courts from intervening in disputes between schools “with a religious mission” and any “teacher [entrusted] with the responsibility of educating and forming students in the faith.” The Supreme Court reversed two decisions by the Ninth Circuit Court of Appeals (our federal appellate circuit in California), where the religious employers had won summary judgment in the trial court, only to have those judgments reversed by the Ninth Circuit.

Instead of the Ninth Circuit’s narrow definition, the Supreme Court emphasized the breadth of its prior description of the ministerial exception, which “should apply to any ’employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” The Court also repeatedly admonished lower courts to be aware that judges are unlikely “to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition” and not to “second-guess” religious employers’ explanation of their employees’ role, which “would risk entanglement in religious issues.”

This decision provides a strong platform for religious employers facing employment discrimination claims, and lower courts (which had already ruled in both of these employers’ favor) will certainly get the message that the ministerial exception should be applied broadly.

In the second decision, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the Court held that two regulations promulgated by the U.S. Departments of Health and Human Services, Labor, and the Treasury under the Patient Protection and Affordable Care Act of 2010 (sometimes called “Obamacare,” but which I will call the “ACA,” for short) were validly enacted. The regulations in question exempted employers with “sincerely held religious beliefs” or “sincerely held moral objections” from complying with other regulations issued under the ACA requiring health insurance plans to provide coverage for all Food and Drug Administration approved contraceptive methods (i.e., birth control).

The states of Pennsylvania and New Jersey sued, alleging the rules violated the ACA and failed to comply with the required procedures for implementing new regulations (like the immigration regulations regarding “Dreamers” that the Supreme Court recently invalidated on procedural grounds). Initially, a federal district court issued a nationwide injunction prohibiting courts from granting employers relief based on the exemptions, which the Third Circuit affirmed, finding the Departments lacked the authority to issue the regulations and had a bad attitude about the notice and comment process. The Supreme Court found the two birth control exemptions were authorized by the ACA and free from procedural defect, reversing the lower courts and upholding the exemptions for employers.


Weintraub Tobin’s 2020 Labor & Employment Seminar and Training Schedule is Updated

Posted in Disability Discrimination, Discrimination, Employee Privacy Rights, Employment Contracts and Agreements, FMLA and Other Leaves of Absence, Harassment, Labor Law, New Legislation and Regulations, Reductions in Force, Retaliation and Wrongful Termination, Trade Secrets and Competition, Wage & Hour

Weintraub Tobin’s 2020 Labor and Employment Seminar and Training schedule has been recently updated and is now available.  Click here for a pdf version of the schedule.

If you have any questions on any of our seminars or would like to inquire about private, custom-tailored training, please contact:

Ramona Carrillo

(916) 558-6046

The U.S. Supreme Court Has Decided: LGBTQ Employees are Entitled to Protections under Title VII

Posted in Discrimination, Harassment, Labor Law, New Legislation and Regulations, Retaliation and Wrongful Termination

In the midst of the COVID-19 pandemic, an economic crisis that is predicted to be as bad as the great depression, and unrest over racial inequality and police brutality that is giving birth to a global movement for social change, the U.S. Supreme Court issued a landmark decision in Bostock v. Clayton County, Georgia (Case No. 17–1618) on June 15, 2020 and announced with finality that an employer who fires an individual merely for being gay or transgender violates Title VII.   The decision was a shock to some and long overdue for others.  Regardless of one’s political or social leanings, it is without question that the decision is an important one that will have far reaching consequences throughout the country.

Summary of Facts and Lower Court Rulings.

The Bostock case is actually a consolidation of three separate cases. In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed. The Supreme Court granted review of the cases and its decision puts to rest the split of authority between the Circuits as to whether Title VII protects LGBTQ employees from discrimination in the workplace.

Supreme Court Analysis.

Justice Neil Gorsuch wrote the majority opinion (joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan).  In a direct and no-nonsense fashion, Justice Gorsuch said that few facts were needed to appreciate the legal question the Court faced:

Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.

The Court said that with this in mind, their “task is clear.”  The Court had to determine the ordinary meaning of Title VII’s command that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” To do so, the Court said it had to orient itself and examine the key statutory terms in Title VII when adopted in 1964, and examine the impact of those terms on the cases before them considering the Court’s precedents.

The only statutorily protected characteristic at issue in the cases and which the parties dispute was based on, is “sex.”  The employers claimed that the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” The employees countered by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. However, candidly, the Court said that the parties’ debate over the meaning of “sex” in 1964 is not the real focus of the analysis.  According to the Court, the question isn’t just what “sex” meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions “because of” sex but it doesn’t matter if other factors besides sex contribute to the action.  Also, when analyzing a discrimination case under Title VII, the focus is not on class or group (men v. women) treatment, but rather individual treatment.

Prior precedent has made clear that Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” (Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989) (plurality opinion).  The Court said that the statute’s message for the cases before it was equally simple and momentous: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” 

To help illustrate its reasoning, the Court provided a number of hypotheticals.

  • Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”
  • Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

As the Court pointed out, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. Also, it doesn’t matter that when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision. For example, the Court said consider this hypothetical:

  • “Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee.

The Court said the same is true in the cases before it.  “When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play – both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.

Finally, an employer musters no better a defense by responding that it is equally happy to fire male and female employees  who are homosexual or transgender. According to the Court, “Title VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII.”

The Bostock decision ends years of conflicting decision between federal Circuit courts as to the coverage of Title VII protections against discrimination for LGBTQ employees.  For those employers who are not located in a state that already provided those protections under state law, now is the time to ensure that policies, practices, and trainings address these protections.

The employment lawyers at Weintraub Tobin have years of experience counseling, training, and defending employers in all areas of employment law, including harassment and discrimination under Title VII and California law.  Please reach out to us if we can assist you in your employment law compliance.

Business Owners – Planning Can Help Prevent Employer Liability During Civil Unrest

Posted in Labor Law

My colleague Brendan Begley blogged last week about the risks employers face due to the threat of COVID-19 in the workplace.  As he noted, employees have the right to expect employers to follow city, county, and state orders and take reasonable precautions to minimize the risk to a known “direct threat” to health and safety.

Now, in the wake of the horrific death of George Floyd 10 days ago, the citizens of our nation have risen up to demand racial equality and an end to systemic injustice.  Our nation’s pent up frustrations have boiled over, and, unfortunately, some of that frustration is being expressed violently.

In the last few days, I’ve been hearing from business owners who were focused on steps to reopen after COVID-19, but are now worried about preventing potential destruction of property, theft, and violence.  While owners work to protect their businesses, they must also not forget to take reasonable steps to protect their employees from harm.

Does Your IIPP Address Violence and Theft?

While CalOSHA recently issued guidelines that said most CA employers would need to update their Injury and Illness Prevention Plan (“IIPP”) to address COVID-19,  employers should also review their IIPP to make sure it complies with California law with respect to violence in the workplace. IIPPs are required to outline various safety protocols and policies – and one of the subjects you must cover is violence in the workplace.   Employers must assess the types of hazards likely to be faced depending on the type of business.  The hazards presented by civil unrest may or may not be something a small business owner ever considered when drafting an IIPP.  (Don’t have one? The DIR has a free Etool – to help you create one!)

Remember, employers cannot retaliate against employees who oppose or report perceived safety hazards, unsafe practices, or violations of law in the workplace.

Safety First!

Just before I sat down to write this, I drove to my favorite local restaurant to pick up lunch. Many businesses in my city were closing, or open but in the process of boarding up windows and installing barricades, hoping to prevent damage if tonight’s planned protests turn violent.

If a business does decide to stay open in the face of planned or threatened protests or looting in your area, here is some common-sense advice:

  • Be sure to have an emergency action plan and communicate your plan to employees.
  • Make sure that employees have an escape route, or that they know they are free to go home if they feel unsafe.
  • Do not violate curfews that may be put in place, and do not ask employees to do so.
  • Reinforce the message that their health and safety is the number one priority, and especially for employees who may be in danger when they leave work to go home, consider sending them home early.
  • “Call 911” may not be a sufficient response to an emergency in the face of widespread riots and looting, since the police force will likely already be out in force but may be overwhelmed.
  • Make sure employees know that they are not expected to, and should not, attempt to interfere with looters, or put themselves in harm’s way, or violate curfew. Lives cannot be replaced.

Please, stay safe and take care of each other. Don’t hesitate to call your Weintraub Tobin employment advisor if you need guidance or assistance during these unprecedented times. We are all in this together.


Inoculating Against the Coming Spread of Employee Lawsuits Related to COVID-19

Posted in Disability Discrimination, Discrimination, FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations, Retaliation and Wrongful Termination

As workplaces begin reopening in the coming weeks, attorneys are predicting a rash of lawsuits by employees against their employers related to the COVID-19 pandemic.  It seems clear that workers-compensation preemption may immunize employers from most civil actions alleging that employees became infected with the virus on the job.  However, other types of employee lawsuits may reach fever pitch.

There does not appear to be any vaccination to alleviate many of the anticipated claims.  Still, just as good hygiene practices may help flatten the curve of the actual coronavirus, good employment practices can help reduce the incidence of such lawsuits in your workplace.  Here are four types of employment claims that are likely to spread like a contagion as employees are expected to (or actually do) return to their jobs, along with some inoculations that employers should consider:

Disability Claims

According to at least one media outlet, the head of the U.S. Equal Employment Opportunity Commission’s New York office reported this week that charges accusing employers of failing to accommodate workers’ disabilities are outpacing any other allegation tied to COVID-19 in the Empire State.  Employers should anticipate similar developments here in the Golden State.

Indeed, California’s Fair Employment and Housing Act (“FEHA”) and its federal counterpart, the Americans with Disabilities Act (“ADA”), both prohibit disability discrimination and require employers to provide reasonable accommodations to disabled employees.  An ounce of prevention – by engaging in the interactive process (from a safe distance) with infected or otherwise disabled employees to identify reasonable accommodations – often is more economical than the pound of cure that would come from prevailing in a failure-to-accommodate lawsuit.

In this regard, employers should remember that each request for an accommodation must be analyzed independently, and that a leave of absence may constitute a reasonable accommodation.  Thus, if employees request a leave of absence, either to get over their own COVID-19 infection or to reduce the risk of being exposed to the coronavirus due to some preexisting disability that puts them at greater risk, serious thought must be given to fashioning a workable accommodation.

Some employers may find respite in the notion that a coronavirus infection might not constitute an actual disability under the ADA or the FEHA, as the illness typically impairs its victims moderately or for only a short duration of time.  But this brand of comfort is often an ineffective placebo and not a recommended treatment to prevent the spread of disability lawsuits.  That is because the effects of a COVID-19 infection may be more long-lasting or create a more severe impairment for some individuals.  Thus, it would be a mistake for an employer to assume that such an infection can never amount to a protected disability.

At the same time, both the FEHA and the ADA prohibit employers from discriminating on the basis of a perceived disability.  Thus, it is foreseeable that some employers might decide to treat certain workers differently than others because they believe certain workers have some other actual or perceived medical condition (e.g., a persistent cough, or diabetes, or an immunodeficiency, or Chronic Obstructive Pulmonary Disease).  Employers may worry that letting such vulnerable employees return to the job or interact with coworkers might make them more susceptible to getting or spreading COVID-19.  While treating such employees differently in this manner may seem (or even might actually be) an act of caring and concern that would rival Florence Nightingale, such actions can lead to costly challenges in court (especially if they are applied in a clumsy fashion).

Disability harassment is another type of claim that employers may anticipate.  One way this type of claim may arise is when coworkers, managers or supervisors develop a notion that a particular employee was (or is) infected with coronavirus and spread (or is spreading) the sickness to the workplace.  If such coworkers, managers or supervisors are allowed to harass, insult or ostracize an employee on that basis, the employer may find itself in need of some urgent care from lawyers.

Tameny Claims

The so-called Tameny claim is named after the California Supreme Court’s decision 40 years ago in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.  Under the high court’s ruling in that case, a worker may pursue a lawsuit when he or she alleges that the employer terminated his or her employment in violation of some public policy.

It is difficult to tally how many Tameny claims are spreading in California, as the administrative agencies that handle claims of disability discrimination (or other types of discrimination, harassment or retaliation) typically are not responsible for investigating a Tameny claim.  So we may not know for many months how many Tameny claims have been filed in court; nonetheless, there is good reason to think the number will be high.

Keep in mind that California has a public policy that requires employers to “furnish employment and a place of employment that is safe and healthful for the employees therein.”  (Cal. Labor Code, § 6400.)  Also bear in mind that California has a public policy that prohibits employers from “preventing an employee from disclosing information to a government or law enforcement agency,” or to a manager or supervisor, “who has authority to investigate, discover, or correct the violation or noncompliance.”  (Cal. Labor Code, § 1102.5.)

With those public policies in mind, there are two general ways to become exposed to a Tameny affliction.  One arises when an employee is fired for refusing to execute some task on the job that actually would be unlawful.  The second arises when the employee is fired for complaining about what he or she reasonably perceives to be unlawful activity in the workplace (even if the activity in question turns out to be legal).

Regarding the first variety, it is easy to foresee the following scenario developing:  An employer directs an employee to return to work and the employee refuses and is fired.  If the employer instructed the employee to return before the government lifted restrictions for that specific workplace, terminating the employee for refusing to return may violate a public policy.  Likewise, if the employer waits until the restrictions lift but then fails to enforce regulations requiring social distancing or sanitary practices or the donning of personal protective equipment (“PPE”), firing an employee for refusing to work under such conditions may also be in violation of public policy.

Turning to the second type of Tameny ailments, it is equally easy to anticipate these scenarios occurring:  An employer directs an employee to return to work either before the restrictions are lifted or after the restrictions are lifted but without implementing or enforcing policies for social distancing, sanitation, or PPE.  The employee complies, returns to the job, and performs his or her work, but not quietly or without protest.  Instead, the employee complains about the workplace conditions, either to a governmental agency or a supervisor, and is subsequently fired.  Terminating an employee for complaining about such workplace conditions may be in violation of public policy.

One aspect of many Tameny claims that make them look less severe than other types of claims is that they often do not result in the employer having to pay the employee’s attorney fees.  However, given the other undesirable symptoms and bad side-effects that such lawsuits can trigger (e.g., lost productivity due to litigation, or the risk of emotional-distress and even punitive damages), that is a bit like telling a sick patient suffering from simultaneous chills and sweats that a fever of 103.8 degrees is not as bad as one that is 104 degrees.

Leave Claims

There are a number of federal and state laws that require various employers to provide a certain amount of protected leave to covered employees; for example, the federal Families First Coronavirus Response Act (“FFCRA”), the federal Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”).

The FFCRA was passed just this year to provide workers with protected leave if they have been impacted in various ways by the coronavirus and related shelter-in-place orders.  It has already resulted in what some might call an epidemic of lawsuits where employees have claimed that their employer interfered with their protected leave, denied them benefits, or fired them in retaliation for requesting leave.

Meanwhile, the FMLA and the CFRA are not geared specifically for coronavirus-related leaves, like the FFCRA is, but those laws may still protect such leaves of absence.  Making things more complicated, there may be overlap between these leave entitlements and some employers may be subject to all of these laws, while others are subject to some or none of them.

It is very probable that employers will be faced with many more leave requests, either to care for someone who has been infected with COVID-19 or to stay at home with a child whose school or daycare facility remains closed while some restrictions are lifted.  Of course, employees also may request leave to deal with other health conditions that deteriorated while they were unable to get routine medical treatment while sheltered in place.  Each leave request should be given serious consideration.

Discrimination Claims

Whereas some employers may be struggling with too many employees in need of leave, others may be grappling with having to lay off employees due to downturns in business as a result of the shelter-in-place restrictions.  In either scenario, care must be given to how such decisions are made and serious thought must be devoted to the potential results.

Such decisions may trigger claims under the FEHA or its federal counterparts, Title VII of the Civil Rights Act or the Age Discrimination in Employment Act.  Those laws bar making employment decisions on the basis of certain protected categories; for instance, age, race, national-origin, gender or religion.

When deciding which employees are going to be given leaves of absence, or laid off, or assigned to certain duties, consistent procedures and rationales must be followed.  Even then, under what is called the disparate-impact type of claim, a neutral policy or practice can lead to discrimination liability if it has a statistically disproportionate impact on a certain class of workers.

Inoculate Against Such Claims

There is no vaccine that will prevent or get rid of all such claims, but the harmful effects of such lawsuits can be ameliorated by following certain precautions.

First, be sensitive to actual or perceived disabilities, do not make medical assumptions, work hard to identify and implement reasonable accommodations for disabled employees, and be vigilant in guarding against harassment of employees on the basis of some perceived or actual medical condition.

Second, take every request for a disability accommodation or leave of absence seriously and analyze each one independently on its own merits.

Third, do not violate or direct your employees to violate governmental shelter-in-place, social-distancing, sanitary or PPE restrictions or regulations.

Fourth, whenever making a termination decision, be sure it is for reasons that have absolutely nothing to do with the employee’s refusal to violate some public policy or the employee’s complaints about reasonably perceived violations of some public policy.

Fifth, make certain that personnel decisions have nothing to with protected classifications (e.g., age, race, gender, religion) and carefully analyze how decisions may impact protected classes of employees.

Just as there presently is no medicine that is sure to eradicate the current pandemic, there is no one-size-fits-all regimen that will completely wipeout such employment claims.  Even these steps cannot completely immunize employers against all these types of lawsuits, yet failing to adopt such protective measures probably will increase the risk of exposure to these afflictions.

Finally, it seems obvious that getting prompt medical attention may stem the more serious effects of a disease; by the same token, obtaining early legal advice may decrease the incidence or cost of these exorbitant types of lawsuits.