California’s Department of Fair Employment and Housing (DFEH) has issued a Guidance setting forth its view on COVID-19 related issues in the workplace. While the Guidance is not binding on courts, it does represent the DFEH’s policy and its interpretation of the law. Thankfully, most of the answers the DFEH provided are commonsense and logical.
May an employer send employees home if they display COVID-19 symptoms? Yes. The DFEH shares the opinion of health professionals that employees who become ill with symptoms of the COVID-19 illness or who exhibit symptoms of the virus should immediately leave the workplace. Employers may ask employees who exhibit COVID-19 symptoms to go home. If that happens, the DFEH notes, employers should provide employees with paid sick leave, PTO or other benefits to which they may be entitled.
How much information may employers request from employees who report feeling ill at work? It would not violate the FEHA for employers to ask employees if they are experiencing COVID-19 symptoms, such as fever or chills and a cough or sore throat, though the employer must maintain medical confidentiality over medical information.
May employers take employees’ temperatures to determine whether they have a fever? Yes, but only for the limited purpose of the COVID-19 pandemic. Generally, no.
May employers ask employees why they have been absent from work on suspicion of a medical reason? Yes. Asking why an individual did not report to work is not a disability-related inquiry.
May employers reveal to others whether an employee is quarantined, tests positive for COVID-19, or has come in contact with someone who has the virus? Yes, but employers cannot identify such employees by name. Employers should not identify any such employees by name in the workplace to ensure compliance with privacy laws. The DFEH specifically approved the following message to employees:
“[Employer] has learned that an employee at [office location] tested positive for the COVID-19 virus. The employee received positive results of this test on [date]. This email is to notify you that you have potentially been exposed to COVID-19 and you should contact your local public health department for guidance and any possible actions to take based on individual circumstances.”
May employers require employees to wear personal protective equipment (PPE) (e.g., face masks, gloves, or gowns)? Yes. Employees can request accommodations from wearing PPE.
Does COVID-19 qualify as a “serious health condition” for purposes of the California Family Rights Act (CFRA) if they cannot work because they are ill because of COVID-19 or must care for a family member who is ill? Yes, if it results in inpatient care or continuing treatment or supervision by a health care provider (which it almost certainly will). It may also qualify as a serious health condition if it leads to conditions such as pneumonia.
If an employee requests CFRA leave for COVID-19, what kind of certification from a health care professional is appropriate? It is not typically practical for employees to provide advance notice of the need for leave (when that need is related to COVID-19), or for employees to obtain certifications when health care providers are working to address urgent patient needs. Employers should consider waiving certification requirements when considering and granting leave requests.
Are COVID-19-positive employees who are not eligible for CFRA leave still entitled to reasonable accommodation under the FEHA? Maybe. Whether illness related to COVID-19 rises to the level of a disability (as opposed to a typical seasonal illness such as the flu) is a fact-based determination. Employers should consider telework and leave as reasonable accommodations for employees with illness related to COVID-19 unless doing so imposes an undue hardship.
Notably, the DFEH Guidance was consistent with a Guidance issued by the EEOC on COVID-19 and the Americans with Disabilities Act (ADA). In addition to the topics covered by the DFEH, the EEOC also noted that employers could request fitness for duty notes from employees returning from COVID-19-related leave, though they should be conscious of how busy doctors are during this crisis.
For more employer-focused information about COVID-19: see Hirschfeld Kraemer’s Employer’s Guide to Coronavirus
Dan Handman is a partner in the Los Angeles office of Hirschfeld Kraemer LLP. He can be reached at (310) 255-1820 or firstname.lastname@example.org.