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 – www.dir.ca.gov/dosh/etools/09-031/index.htm 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.

 

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.

On May 20, 2020, the California Department of Fair Employment and Housing (DFEH) announced that it has finally launched free anti-sexual harassment training for non-supervisory employees. The online training, which is available through DFEH’s website – https://www.dfeh.ca.gov/shpt/ – will meet an employer’s obligation to provide training to non-supervisory employees by January 1, 2021.

Section 12950.1 of the California Government Code requires employers with five or more employees to provide at least one-hour of classroom or other effective interactive training and education regarding sexual harassment prevention to all non-supervisory employees in California.

According to the DFEH’s announcement, its new training is interactive and optimized for mobile devices and is accessible for persons with disabilities. The training is currently available in English and will be available in five additional languages in the coming months (Spanish, Simplified Chinese, Tagalog, Vietnamese, and Korean).

The DFEH said that it is planning to launch a similar online training for supervisors in California in the coming months to help employers meet their obligation under Government Code section 12950.1 to provide supervisors with two hours of training by January 1, 2021.

The full DFEH announcement can be found at: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/05/SHPT_PR.pdf

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

This is a follow up to our previous blog regarding California’s gradual entry into Stage 2 of the State’s re-opening plan – termed the “Resilience Roadmap.”  As Governor Newsom announced on Tuesday, May 13, 2020, counties are able to, and are, submitting their attestations to the State to speed up the reopening of certain businesses within their counties.  As such, the gradual reopening of businesses in Stage 2 is a fluid and rapidly evolving process driven not only by the State’s decisions on what businesses can and cannot reopen (on a modified basis) at this time, but also on what counties are doing to help move the process along for their businesses.  However, it is important to note, that the State has made very clear that if counties have more restrictive shelter-in-place orders in place, they may continue to enforce them even if the State’s order is modified to reduce certain restrictions.

The evolving re-opening plan around the State is being regularly updated on the State’s website.  Because the updates are happening in real time, it is important for businesses to regularly check the California Department of Public Health’s website to determine the current status of the State and county orders that apply to their business location(s). The website can be found here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Local-Variance-Attestations.aspx

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 with your employment law needs, please reach out to any one of us.

 

The EEOC has updated its COVID-19 Guidance once again by adding a number of new FAQs to address issues related to the anticipated re-entry into the workplace.  The new FAQs discuss things like: an employer’s right to screen employees before entering the workplace to avoid a “direct threat” to the health and safety of employees; documentation to support an employee’s request for an accommodation; and “undue hardship” considerations when denying an accommodation based on the impact of COVID-19 on the business.  Below is a list of the updated/new FAQs.  The complete EEOC’s Guidance and FAQs can be found here.

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? (4/23/20)

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

D.12. Do the ADA and the Rehabilitation Act apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC? (4/23/20)

Yes. These CDC designations, or any other designations of certain employees, do not eliminate coverage under the ADA or the Rehabilitation Act, or any other equal employment opportunity law. Therefore, employers receiving requests for reasonable accommodation under the ADA or the Rehabilitation Act from employees falling in these categories of jobs must accept and process the requests as they would for any other employee. Whether the request is granted will depend on whether the worker is an individual with a disability, and whether there is a reasonable accommodation that can be provided absent undue hardship.

G.3. What does an employee need to do in order to request reasonable accommodation from her employer because she has one of the medical conditions that CDC says may put her at higher risk for severe illness from COVID-19? (5/5/20)

An employee – or a third party, such as an employee’s doctor – must let the employer know that she needs a change for a reason related to a medical condition (here, the underlying condition).  Individuals may request accommodation in conversation or in writing.  While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, she may do so.

The employee or her representative should communicate that she has a medical condition that necessitates a change to meet a medical need.  After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.

G.4. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19.  An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation.  How does the ADA apply to this situation?

First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19.  Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard.  As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. section 1630.2(r). A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.  Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his particular job duties.  A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite.  Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation (absent undue hardship).  The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions.  This can involve an interactive process with the employee.  If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework).  An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.

G.5. What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self? (5/5/20)

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace.  Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.  Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position).  In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

These are only a few ideas.  Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace.  An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations.  As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and your family the best through this unprecedented time.  If we may be of assistance to you in your employment law needs, feel free to reach out to any of us.