CALIFORNIA BILL AB 685
What notification obligations do employers have when they become aware that their employees may have been exposed to COVID-19 at work?
On September 17, 2020, California Governor Gavin Newsom signed AB 685 into law (codified as Cal. Labor Code §§ 6325, 6409.6, 64320. This new statute, which takes effect on January 1, 2021, creates new notice and recordkeeping requirements regarding COVID-19 in the workplace. The new law requires that employers take all of the following steps within one business day of notice of a potential exposure to COVID-19 in the workplace:
AB 685 also requires that, when an employer is notified of the number of cases that meet the California Department of Public Health’s definition of COVID-19 outbreak, within 48 hours, the employer must notify the local public health agency of the names, number, occupation, and worksite of each employee with COVID-19
CAL/OSHA EMERGENCY REGULATIONS AND CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS
Does the “three or more COVID-19 cases” threshold for determining an outbreak in the workplace include non-employees as well as employees?
On November 30, 2020 new Cal/OSHA Emergency Regulations were released requiring employers to protect workers from hazards related to COVID-19. These measures include, but are not limited to implementing a site-specific written COVID-19 prevention program, provide face coverings, and correct any unsafe or unhealthy working conditions. Specifically, if the workplace has been exposed to three or more COVID-19 cases within a 14-day period, this is considered an “outbreak” and Cal/OSHA protocols will be triggered.
In determining an outbreak, both employees and non-employees are included when meeting the three or more/14–day–period threshold and employers should inform their employees of the same.
What if employers are unable to comply with Cal/OSHA’s November 30, 2020 effective date?
Cal/OSHA requires employers to prepare a written COVID-19 Prevention Program, as well as prioritize eliminating workplace COVID-19 hazards and providing free-of-charge COVID testing with an effective date of November 30, 2020.
While Cal/OSHA enforcement personnel expect employers to be working on these essential requirements now, they will consider an employer’s good faith efforts in working to prepare their Prevention Programs as they simultaneously work on identifying and eliminating COVID-19 hazards.
Must employers provide paid leave to those employees who are COVID-19 cases as well as those who have had COVID-19 exposure?
The California Department of Industrial Relations (“CDIR”) released FAQs confirming that for those COVID-19 cases and those with COVID-19 exposure that are excluded from the workplace, employers must maintain the employee’s seniority, earnings, all other rights and benefits, “including the employee’s right to their former job status, as if the employee had not been removed from their job.”
Specifically, the CDIR FAQs provide that employers must provide what they call “exclusion pay”: paid, job-protected leave during the period that the employee is excluded. The employer must continue to provide the employee’s pay and benefits if the employee is able and available to work; however, an employer may require the employee exhaust any paid sick leave benefits before providing exclusion pay and may offset those payment by other employee benefit payments. Note that these obligations will not apply if the employer establishes that the employee’s exposure was not work related.
Is the time that an employee spends being tested for COVID-19 compensable by the employer?
The Cal/OSHA regulations require that employers offer free COVID-19 testing during working hours and the CDIR FAQs have established further that “the time an employee spends being tested is considered compensable hours worked.”
Are Employers required to provide face masks/coverings to all employees?
While the Cal/OSHA regulations require employers to provide face coverings, the CDIR FAQs gives employers the option of either providing face coverings to employees or reimbursing employees for the costs of providing their own face coverings.
Can an employee refuse to come to work because of fear of infection?
An employee is entitled to refuse to come to work, pursuant to OSHA, only if the employee believes that there is an immediate or imminent “threat of death or serious physical harm” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”
An example of when a threat is sufficiently imminent would be when there is a threat of death or serious physical harm before OSHA could investigate the problem. Requiring employees to work without protective equipment and/or with patients in a medical setting could amount to a sufficient imminent threat of death or serious physical harm.
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND AMERICAN DISABILITIES ACT
Can Employers require COVID-19 testing?
The Equal Employment Opportunity Commission (“EEOC”) generally prohibits employers from requiring employees to submit to medical examinations and therefore, any antibody testing is prohibited under the American Disabilities Act (“ADA”); however, the ADA provides an exception for medical tests that are “job related and consistent with business necessity.” Under these regulations, viral tests are permissible under the ADA. Thus, Employers may ask employees who will be physically entering the workplace to submit to a viral test before they enter the workplace and/or periodically to determine whether the employee’s presence amounts to a threat to others.
Can employers ask returning employees if they have had COVID-19, or if they have been tested for it?
Pursuant to EEOC guidelines, employers may ask certain questions and in a specific manner. An employer may ask whether an employee has been diagnosed with COVID-19, is experiencing COVID-19 symptoms, or if the employee has been tested for COVID-19, but only if (1) the questions asked are only to those employees physically entering the workplace, (2) that all employees are asked the same questions, or (3) if not all employees, then only the employees that the employer has a reasonable belief based on objective evidence that the employee may have COVID-19.
What actions can we take if an employee is exhibiting flu-like symptoms but refuses to leave the workplace?
In order to invite cooperation, employers should begin with explaining to the employee how their continued presence compromises the health and safety of the entire workplace and reiterate that they are being asked to leave, as well as explaining how any available paid-leave benefits can be utilized by the employee.
If an employee continues to remain on workplace premises, the employer can choose either of these two options: (1) Explain to the employee that since they have been asked to leave and have refused to do so, they are now trespassing on private property and their continued presence can result in the employer being forced to call local law enforcement to escort them off the premises; or (2) An employer may terminate the employee for insubordination. The latter option should, however be used as a last resort and the employer should thoroughly consider the public perception related to strong adverse action against an employee expressing concerns related to COVID-19.
Can an employer ask an employee who has been absent from work why they were absent?
Yes. The EEOC allows employers to ask employees who were absent from work for the reason for their absence, since the inquiry is not a disability-related inquiry.
What options do employers have when an employee refuses to answer COVID-19 related questions or submit to being tested for COVID-19?
The EEOC permits employers to prohibit an employee’s presence on workplace premises if the employee refuses to answer questions related to COVID-19 symptoms or refusing to submit to a temperature test.
Are employers allowed to ask employees whether anyone in their family has COVID-19 or COVID-19 symptoms?
No. While employers are allowed to ask employees whether they have been in close contact with someone who has COVID-19 or COVID-19 symptoms, the EEOC confirms that COVID-19 questions about an employee’s family members is prohibited under the Genetic Information Non-Discrimination Act.
By Katya Zavala and Michael Karikomi, December 4, 2020