Employment Law and Workplace Information Regarding the Coronavirus Pandemic
As the spread of COVID-19 widens, employers are imposing new workplace restrictions, which raise a host of legal questions. Below are Seltzer Caplan McMahon Vitek Shareholder Dan Eaton's answers to questions posed by San Diego Union-Tribune business reporter Lori Weisberg for her recent story regarding employment law issues related to the current pandemic.
Please note the legal response to the pandemic, like everything else about it, is fluid so the below may not reflect the latest controlling legal authority.
As the coronavirus outbreak widens, more employers are placing travel restrictions on workers unrelated to their work. Can they require you to alter travel plans or impose self quarantines for when you return from your trips?
The answer to the first question is partially yes and the answer to the second question is probably yes.
The answers to these and other questions related to the law of the workplace as it concerns the Coronavirus start with the basic obligation of all California employers under Labor Code section 6400 to “furnish employment and a place of employment that is safe and healthful for the employees therein.” California employers have the corresponding obligation not to “require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful.”
An employer has the right to restrict or prohibit business travel. The employer, after all, pays for such travel. An employer also may strongly discourage employees from personal travel, though probably may not outright restrict or prohibit such travel at risk of discipline. California law makes it unlawful for an employer to demote, suspend, or discipline an employee “for lawful conduct occurring during nonworking hours away from the employer’s premises.” Personal travel – even risky personal travel – falls into that category.
As part of the California employer’s duty to provide its employees with a safe and healthful workplace, the employer probably may require an employee who has traveled to a high risk area to self-quarantine for the duration of the COVID-19 incubation period.
What about financial losses the employee may incur in connection with cancelling a planned trip? Is the employer required to compensate you for those losses?
An employer may be financially responsible for the unrecoverable cost of a trip canceled at the direction of the employer. Labor Code section 2802 (a) requires an employer to indemnify, or cover, “his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer. . . “ Many, maybe most by now, travel providers are offering flexible cancellation policies which should avoid the necessity of the lion’s share of these financial losses to employees.
If I am required by my employer to work from home but don’t have the necessary equipment to do so, is the employer obligated to provide me with what I need to do so?
The key word in your question is the word “necessary.” If an employer requires an employee to do a particular job in a particular place for which a particular kind of equipment is “necessary”, the employer is probably required to provide the employee with that equipment. But the employer may require that the job be performed without such equipment or with low- cost equipment.
What if my job is such that I can’t work from home, do I have to take sick time or PTO or what if I don’t have enough sick time? Does the employer still have to pay me?
According to the California Department of Industrial Relations, an employee may choose – but may not be required -- to take paid sick leave for preventative care, such as “where there has been exposure to COVID-19 or where the worker has traveled to a high risk area.” The employer also may allow a worker to take paid sick leave under those circumstances. According to the DIR, “if an employee does not qualify to use paid sick leave, or has exhausted sick leave,” an employee may use vacation or other paid time off to be compensated “provided that the terms of the vacation or paid time off policy allows for leave in this circumstance.” A non-exempt, at-will employee (that is, an employee who is entitled to overtime pay) probably may be required to stay home from work without pay. An employer also may choose to pay an employee under those circumstances.
Why are employers taking what some may see as draconian steps? They haven’t done so during normal flu seasons?
The medical authorities report that this particular version of the Coronavirus is particularly dangerous and especially communicable. No employers want to take the steps many are taking, but many feel that the steps they are taking, in connection with their duty to maintain a safe and healthful workplace, are proportionate to the gravity of the threat posed by what the DIR has called an “unprecedented health emergency.”
What kind of liability issues are employers facing in connection with the coronavirus?
Failure to take proactive steps to avoid employee exposure to those known to have been exposed to COVID-19 may subject an employer to Cal-OSHA fines. Retaliating against an employee for refusing to come into a workplace the employee reasonably believes has been exposed to COVID-19 may also carry fines and other civil consequences. On the other hand, failing properly to accommodate those with COVID-19 or discriminating against those who have or are perceived to have the disease may subject an employer to a claim for disability discrimination. The extent of employer liability that arises from this situation will be apparent only after the threat from this virus inevitably passes.
Can my employer dictate how I conduct business? That is, what if I have a type of job that requires in-person interactions, can I be forced to work virtually?
An employer has the right to control how its employees do their job. An employer may decide that, while in-person interaction is ideal for a particular job, virtual interaction is an acceptable alternative.
Can my boss require me to submit to a medical exam?
It is not clear whether an employer may require an employee who has traveled to a high risk location to submit to a medical exam. The answer is probably no if the employee self-quarantines upon his or her return for a period at least as long as the incubation period of COVID-19.
I’ve been diagnosed with the coronavirus. Do I have to notify my boss as long as I stay home from work?
An employee is not required to inform their employer that they have been diagnosed with any particular disease, including COVID-19.
Will my diagnosis remain confidential?
If an employee at work voluntarily discloses their recent COVID-19 diagnosis to an employer, the U.S. Chamber of Commerce advises the employer to “inform fellow employees of their possible exposure to the Coronavirus infection in the workplace but maintain confidentiality [of the source of that exposure] as required by the Americans with Disabilities Act (ADA).”
If you have any questions or concerns, please contact Dan Eaton at firstname.lastname@example.org.