As the “new normal” drags on longer than any of us would have hoped, some people are having a harder time adjusting than others.  While nobody likes wearing a mask or practicing social distancing, what are an agency’s options and obligations with respect to an employee who can’t or won’t?

First things first: for as long as the June 18, 2020 statewide order requiring face coverings is in effect, the employer cannot allow an employee to be in the workplace and not comply.  Further, the Occupational Safety and Health Act requires employers to provide a safe working environment for all workers, and permitting an employee to work without a mask or without social distancing compromises the safety of his or her colleagues, and also the safety of the employee.  If an employee shows up to work without a face covering, he or she must be sent home.

If the employee claims to have a medical condition that prevents compliance, the employer should initiate the interactive process.  The first step is for the employee to provide a doctor’s certification that the employee has a work restriction preventing him or her from wearing a face covering.  The certification should not specify what the employee’s condition is.  There are printable flyers or cards circulating on some corners of the Internet purporting to exempt individuals from wearing face masks:  these are not valid and no employer should accept them.  (A telltale sign is that many misspell HIPAA as “HIPPA”.)

If the employee has a work restriction, in virtually all cases, there will be only two potential accommodations: allowing the employee to work from home, or some type of leave.  It’s always good for employers to think creatively in the interactive process, but an employer has no obligation to allow an employee to violate the law.  Further, an accommodation is not reasonable if it puts others at risk.  (California Code of Regulations, Title 2, § 11067.)

What about an employee who simply doesn’t want to wear a mask, or won’t follow social distancing requirements?  Even if there is no State or County order in place, employees are required to abide by workplace rules.   An employee who refuses to conform to such rules is subject to discipline.  Employers should follow their progressive discipline policies – and continue to send the employee home each time he or she shows up maskless.  Each time is a separate occurrence of misconduct.  Social distancing violations may be tougher to spot, and therefore tougher to enforce, but employees should be encouraged to speak up if a colleague is failing or refusing to comply.

Is there potential liability for refusing to allow an employee to be in the workplace sans mask?  These rules are too new to have been tested by the courts, and the creativity of plaintiffs’ attorneys knows no bounds.  However, despite the comments of one out-of-state lawmaker, the “unmasked community” is not a protected class under state or federal law.  An employee may be able to claim disparate treatment based on a protected class if an employer fails to enforce its mask policy consistently, e.g., argue that the policy is enforced less strictly on a different group, and the stricter enforcement on the plaintiff employee’s group is discriminatory.   An employee may also argue that a mask requirement has a disparate impact: that their protected group is more burdened by an evenly enforced mask rule.  Whether either of these arguments has any success in court remains to be seen.

An employee’s failure or refusal to wear a mask or practice social distancing can present complex issues for employers, and employers should seek counsel from their trusted legal advisors when approaching these issues.

On July 30, 2020, the California Supreme Court issued its decision in Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn. (Alameda).  It was anticipated that the Court would address the continuing viability of the “California Rule.”  Under the California Rule, a public employee is vested in a pension benefit at the start of employment.  Under the traditional expression of the California Rule, benefits cannot be reduced even for prospective service, except in very limited circumstances.  The modification of a pension benefit “must bear some material relation to the theory of a pension system and its successful operation,” and any modification that results in disadvantages to employees must be accompanied by comparable new advantages. While the Court asserted at the end of the decision that it was not reexamining the California Rule, the decision leaves the current legal framework largely intact, including the California Rule.

Alameda considered whether legislative changes made to the County Employees Retirement Law of 1937 (“CERL”) by the Public Employees’ Pension Reform Act of 2013 (“PEPRA”) unconstitutionally impaired vested pension benefits of public employees employed at the time PEPRA was passed.  PEPRA excluded some forms of compensation from the calculation of retirement benefits that had long been included.  The exclusions were based on concerns related to pension spiking.  Even though these changes had the effect of reducing retirement benefits of the employees impacted, the statute made no provisions for the employees to receive any alternative benefits to make them whole for these reductions. The Court held that the PEPRA changes were constitutionally permissible. However, the Court’s determination that no comparable benefit needed to be provided largely hinged on its determination that eliminating pension spiking is a constitutionally proper purpose that would be defeated by providing a comparable advantage.  Consequently, the decision was narrow in scope and does not resolve what other motivations for pension reform will be allowed.

The Court’s ruling largely leaves the traditional California Rule and analysis intact with one deviation.  Closely tracking existing case law concerning the California Rule, the Court determined that where pension benefits are protected by the contract clause of the California Constitution, any modification of a constitutionally protected pension benefit must be reasonable in that it “must bear some material relation to the theory of a pension system and its successful operation.” Whereas traditionally, such a modification must be accompanied by other benefits, the Court found that where, as here, providing alternative benefits would be inconsistent with the purpose of the constitutionally proper modification, alternative benefits would not be required.

The Court’s Analysis

Two different disputes were discussed in the decision.  First, the Court considered whether the PEPRA amendments violated settlement agreements entered into following previous litigation involving several county retirement boards regarding compensation included in pension benefits.  Second, the Court considered whether the PEPRA amendments impaired constitutionally protected rights, which was the issue implicating the California Rule.

Violations of the Settlement Agreements

For this question, the Court observed that the retirement boards’ administrative powers are limited by the enabling legislation.  The Legislature has final authority for establishing the provisions governing pensions and the judiciary has final authority to interpret the legislation.  The Court concluded that the retirement boards had no authority to act inconsistently with the CERL and cannot disregard such amendments.  Employees had no express contractual rights to have benefits calculated in a manner inconsistent with the CERL because the retirement board had no authority to confer benefits beyond those authorized by statute.  Therefore, the Court rejected the contention that the settlement agreements precluded the legislative changes.  The Court also rejected the plaintiffs’ estoppel argument (i.e., it rejected the contention that equitable or fairness grounds required inclusion of the compensation).

       Impairment of Constitutionally Vested Rights

As the PEPRA amendments eliminated compensation that had previously been included in pension benefits for existing employees, the Court easily determined that the issue of constitutionally vested rights had been implicated.

As constitutionally protected rights were implicated and there were disadvantages caused by the modification, the Court turned to the purpose of the modification.  The Court discussed the broad preexisting language of the CERL provisions defining what compensation may be included in pension benefits.  The Court noted that the Legislature sought to limit pension spiking by eliminating practices that were “arguably” permitted under the previous broad statutory language.  The Court determined that the changes in PEPRA were enacted for a constitutionally permissible purpose (i.e., closing loopholes such as spiking that distort pension calculations).

After determining that the modification was the result of a constitutionally proper purpose, the Court turned to whether the modification required the disadvantages to be offset by comparable advantages.  The Court concluded that the constitutionally proper objective would be defeated if the California Rule was interpreted to require the pension plans to maintain the loopholes for increasing pension benefits for existing employees, or to provide comparable benefits that would perpetuate the advantages provided by the loopholes that were closed by PEPRA. Thus, the Court concluded that disadvantages did not have to be offset by comparable advantages.

Therefore, the Court held that the modifications to the CERL by the PEPRA amendments were constitutionally permitted and reversed the decision of the Court of Appeal.

Effect of the Decision

The Court’s decision will likely have little immediate impact on public agencies.  A positive outcome for public employers is that the Court approved a modification impairing pension benefits without requiring offsetting advantages. However, the decision is limited in its application.  The  Court does not state explicitly that impairments motivated by cost savings alone would be impermissible, or if permissible, would require alternative benefits. However, the narrow scope of the ruling will require additional litigation should further pension reform impair benefits for purposes of cost savings.

The California Ralph M. Brown Act (Brown Act) requires public agencies to conduct agency business in public at properly noticed open meetings, subject to very narrow exceptions.  Under the Brown Act, meeting agendas must be published seventy-two hours prior to the governing body’s meeting.  A legislative body cannot act on Items not on the agenda.

A significant statutory exception to the open meeting rule is for a closed session for members of the governing body to confer with or receive advice from legal counsel regarding pending litigation when discussion in open session concerning the matter would prejudice the agency’s position in litigation.  Under the Brown Act, “pending litigation” has a specific and multi-layered statutory definition.  For purposes of the Brown Act, “pending litigation” means formal litigation against the Agency, or, based on existing facts and circumstances, the agency has significant exposure to litigation, is meeting to decide whether a closed session is authorized, or has decided to / is deciding whether to initiate litigation.

If the basis for closed session is significant exposure to litigation or the need to determine whether closed session is authorized, the Brown Act sets forth the following additional disclosure rules related to the source of the facts and circumstances:

  1. Where the facts and circumstances that might result in litigation are not known to the potential plaintiff, the agency need not disclose such facts and circumstances on the agenda;
  2. Where the facts and circumstances that might result in litigation are known to the potential plaintiff, the facts and circumstances must be stated on the agenda or announced in open session;
  3. Where the facts and circumstances that might result in litigation are due to receipt of a written claim or communication from a potential plaintiff threatening litigation, the claim or communication must be made part of the agenda packet for (or otherwise made publicly available at) the open session;
  4. Where the facts and circumstances that might result in litigation are due to a statement threatening litigation made by a person in an open and public meeting, there is no additional disclosure requirement;
  5. Where the facts and circumstances that might result in litigation are due to a statement threatening litigation made outside an open or public meeting, the official or employee with knowledge of the threat must make a contemporaneous or other record of the statement prior to the meeting, which must be made part of the agenda packet for (or otherwise made publicly available at) the open session.

A recent First Appellate District case, Fowler v. City of Lafayette, instructs on the importance of satisfying these Brown Act requirements.  Fowler began as a dispute among neighbors over whether the City should approve a couple’s application to build a 1200 square foot tennis cabana on their private property.  At some point in the approval process, the couple’s attorney threatened to sue the City if it denied the project approval.  The threat was made by the couple’s attorney to a City planner over the phone.  The City planner noted the statement in a password-protected planning database.  The City then held three closed sessions on the dispute under the pending litigation exception but failed to disclose the facts and circumstances of the pending litigation in the agenda packet, on the agenda, or otherwise in open session.

Eventually, the City approved the cabana project.  The dispute did not end there, however.  After the approval, the anti-cabana residents learned that the City held closed session to evaluate pending litigation on the cabana project and sued, alleging the City violated the Brown Act by failing to comply with the requirements of the pending litigation exception.

In overturning the trial court’s decision for the City, the First Appellate District found the City violated the Brown Act because it failed to include a contemporaneous record of the facts and circumstances justifying the pending litigation exception in the agenda packet for the meetings during which closed session was held on the issue.  In its defense, the City argued to the Court that the note placed in the planner’s database was a public record sufficient to satisfy the Brown Act’s requirements for the closed sessions.  However, the Court disagreed, finding that the electronic notation in a password-protected database was insufficient in the face of clear language in the statute requiring disclosure as part of the agenda packet.

Despite the win on the Brown Act violation, the anti-cabana folks ultimately lost the bigger battle: to stop the cabana.  That is, the remedy sought by the plaintiffs was to nullify due to the Brown Act violation the decision to grant the project approvals.  However, because the decision to approve the cabana occurred in open session, the Brown Act failures regarding the closed sessions did not fall within the types of actions that may be nullified under the Brown Act.  Moreover, the court found the plaintiffs failed to show prejudice due to the numerous open session items on the cabana project.

The case is Fowler v. City of Lafayette (2020) 45 Cal. App. 5th 68.

If there is one word that defines this pandemic, it is fear.  While we understand more about COVID-19 today than we did even a few weeks ago, including who may be more susceptible to severe complications, this pandemic still involves a dash of Russian roulette.  It is therefore understandable that some employees – even perfectly healthy ones – will express reservations about returning to the workplace, especially in areas around California where cases are spiking.  The situation is more complicated when an employee outright refuses to return to work, and how employers choose to respond involves walking a tightrope that balances the employer’s legitimate business needs with the employee’s state and federal rights.  Indeed, as California rolls back its reopening plans, and employers face the prospect of a re-opening doppelganger, it is important for employers to understand the nuances of what may be a reoccurring trend.

Concerns About Employer’s Reopening Plans

As we have previously reported, state regulations mandate that employers use reasonable care to provide for the safety of employees and in furnishing a suitable and safe place of work.  For instance, Cal-OSHA requires employers to have an Injury Illness Prevention Plan (“IIPP”) to protect employees from foreseeable workplace hazards.  Cal-OSHA states most California workplaces should amend their IIPPs to address COVID-19, because it is widespread in California.

An employer that has not taken steps reasonably necessary to protect their employees’ health and safety may not discipline an employee who refuses to return to work until the employer can ensure their health and safety.  Furthermore, an employer should not reopen if doing so would violate state or local order.  For instance, on July 13, 2020, Governor Newsom issued a statewide order that will temporarily close many non-critical business sectors throughout California.

Fear of Contracting the Virus

Fear of contracting the virus – among healthy employees where the employer has taken adequate safety precautions – is likely an insufficient reason to refuse to return to work.  In this situation, an employer may treat an employee’s refusal to return to work despite the employer’s reasonable safety efforts as an unexcused absence or possibly insubordination.

That said, the risks of developing complications from COVID-19 increase for people with certain preexisting medical conditions, such as kidney disease, heart disease, compromised immune systems, or diabetes.  These individuals may be entitled to reasonable accommodations under California’s Fair Employment & Housing Act (“FEHA”) or the federal Americans with Disabilities Act (“ADA”).  The same may also be true for employees with preexisting mental health conditions that make coping with the work environment more challenging during a pandemic.  There is no bright-line rule in these cases, and employers must carefully address each situation on a case-by-case basis. The key will be clear lines of communication.

Be Mindful of Retaliation Claims

An employee who complains that the employer’s re-opening plans violate federal, state, or local law could trigger whistleblower protections. The same is also true if the employee refuses to work because s/he reasonably believes the work environment places them at risk of serious injury of death.  Under Labor Code section 1102.5, an employer may not discriminate or retaliate against an employee for disclosing a violation of the law as long as the employee has reasonable cause to believe the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.

Similarly, if a complaint is brought on behalf of a group of employees, it may qualify as “protected concerted activity” under the various labor relations statutes.  In addition, an employee who relies in whole or in part on their own medical condition in a return-to-work complaint may be requesting an accommodation under the FEHA or the ADA.  It would be illegal to retaliate against the employee for voicing such a complaint under those laws.

Family Care Obligations

If employees refuse to return to work due to family care obligations, they may be protected under state and federal leave laws.  California’s Healthy Workplaces, Healthy Families Act of 2014 is expansive and allows employees up to one-half of their annual accrual of sick leave or PTO to care for, among others, a parent, child, spouse, registered domestic partner, grandparent, grandchild, sibling, and parent-in-law.  Likewise, the Families First Coronavirus Response Act (“FFCRA”) allows an employee to use up to 80 hours of paid sick leave at two-thirds the employee’s regular rate of pay if the employee is unable to work because of a bona-fide need to care for an individual subject to quarantine, or to care for a child under 18 whose school or child care provider is closed or unavailable for reasons related to COVID-19.  In the latter situation, an employee is also entitled to an additional 10 weeks of expanded family and medical leave.  This will be a particularly important issue for parents of schoolchildren whose schools offer only on-line classes in the fall.  Some districts have already made that decision.

Therefore, when faced with an employee who refuses to return to work, employers must carefully consider why the employee is refusing to return.  If the employee has identified a legitimate safety concern, the employer should work to address it.  The employer should also consider whether the employee is entitled to an accommodation or protection under state or federal leave laws.  If none of the above apply, the employer would still be wise to consult with legal counsel before taking any actions that may be construed as adverse in order to minimize the likelihood of a retaliation claim.  Moreover, if the employee is covered by a collective bargaining agreement (“CBA”), the employer should carefully review the CBA to determine whether any provisions address the situation and restrict the employer’s ability to respond

These situations present new challenges.  In some cases, there is no settled law on the appropriate response and employers will have to evaluate the risks associated with their decisions.  We are here at LCW to help you work through your decisions.

Over the last few months, claims for unemployment insurance benefits have increased exponentially due to the difficult financial circumstances public and private employers have been confronted with in the wake of the COVID-19 pandemic. Reductions in services and business closures have forced many employers to implement layoffs and furloughs, causing the dramatic increase in unemployment claims.

As employees are being laid off or furloughed because of the COVID-19 impacts, employers will receive notices from the Employment Development Department (EDD) when those laid-off and furloughed employees file unemployment claims. Employers should not erroneously presume it is unnecessary to respond to the notice or that the obligation to do so has changed amidst the COVID-19 pandemic. Irrespective of the reason for the claim or the employer’s decision to not contest a claim, the employer is obligated to respond to the notice in a truthful, complete and timely manner.

In 2013, the California Legislature responded to the federal mandate set out in the Unemployment Insurance Integrity Act (“Act”) by enacting Unemployment Insurance Code section 1026.1. The Act was intended, in part, to deter employers from ignoring unemployment claims and merely accepting them as a “cost of doing business” and sets forth a consequence for employers doing so. If an employer requests that its reserve account be relieved of charges related to benefits overpayments, the EDD will not provide the relief if the employer failed on at least two occasions to timely or adequately respond to the EDD regarding claims for unemployment benefits. For this reason, it is important for employers to provide truthful, complete and timely information to the EDD as requested on individual unemployment insurance claims, even if those claims result from COVID-19 furloughs or layoffs.

Also, it is important to remember that an employer’s response to the EDD can potentially be used as evidence in any related litigation, an additional important reason for the response to be truthful and complete. If litigation is likely or anticipated, employers should consider conferring with legal counsel about the response before submitting it to the EDD.

Similarly, employers seeking to reduce their workforce as a cost-saving measure may be considering severance agreements. If an employer elects to include a provision in those agreements that it will not contest unemployment benefit claims, the employer, nevertheless, must respond to inquiries from the EDD regarding the claims. Further, severance or settlement agreement terms that state the employer will not contest unemployment claims should include language that the employer will provide truthful, complete and timely responses to the EDD. Simply ignoring the EDD’s inquiries could result in denial of future requests for relief in cases of overpayment of benefits.

To ensure compliance with the EDD’s requirements, employers should consider having any layoff or severance agreement reviewed by legal counsel.

Employers know they need to accommodate a disabled employee’s request to bring a service dog to work.  However, what happens when employees claim they are stressed and need to bring their dog to work for emotional support?  Here are the top five questions on emotional support dogs:

 1.  Do we need to allow an employee to bring an emotional support dog?

Yes, if the dog is a reasonable accommodation for a disabled employee.  The Fair Employment and Housing Act (“FEHA”) governs service and emotional support dogs.  Under FEHA regulations, an “assistive animal” is an animal that is “necessary as a reasonable accommodation for a person with a disability.”  The regulations list as an example: “‘Support dog’ or other animal that provides emotional or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities such as major depression.”  (2 C.C.R. §11065(a).)  In fact, the regulations provide allowing employees to bring “assistive animals to the work site” as an example of a reasonable accommodation.  (2 C.C.R. §11065(p)(2)(B).)

When an employee requests to bring an emotional support dog to work, the employer should engage in the interactive process and respond to the employee as it would toward any accommodation request by evaluating the following three factors:

  1. Reasonableness: Is the requested accommodation reasonable?
  2. Effectiveness: Is the request effective? Will this requested accommodation effectively allow the employee to perform the essential functions of his or her job?
  3. Undue Hardship: Does the request pose an undue hardship? With assistive animals, employers must weigh issues such as whether the animal will be disruptive to the workplace.

Just because an employee claims he/she is stressed and needs a support dog, without any documentation from a medical provider, this claim in and of itself does not require that the employer allow the dog.

2.  Can we ask for documentation of the employee’s disability and the need for the support dog?

Yes.  As with any request for an accommodation, the employer may request documentation from the employee’s health care provider stating the employee has a disability and explaining why the employee requires the animal in the workplace (e.g., why the animal is a necessary accommodation to allow the employee to perform the essential functions of the job).

3.  What if the dog bites, smells, barks constantly, or goes to the bathroom in the office?

Under FEHA regulations, employers can require assistive animals to meet minimum standards.  Employers may require the assistive animal (1) is “free from offensive odors and displays habits appropriate to the work environment, for example, the elimination of urine and feces”, and (2) “not engage in behavior that endangers the health or safety of the individual with a disability or others in the workplace.”  (2 C.C.R. §11065(a)(2).)  Thus, if the dog engages in inappropriate or aggressive behavior, an employer does not have to allow it in the workplace.

4.  If we let one person bring their dog, do we have to let everyone bring their pets?

No, allowing one employee to bring their dog would not require allowing all employees to bring their pets.  Whether other employees would be allowed to bring their pets requires an individualized assessment through the interactive process.  However, if other employees did submit similar medical certifications, it may be difficult for the employer to deny other employees’ requests based on undue burden once it determines it is a reasonable accommodation for one employee.

5.  What can we say if people ask why someone is allowed to bring their dog to work, or if people complain about there being a dog at work?

It is difficult to respond to a question about someone bringing a support dog to work without divulging private medical information.  The best way to respond is stating the employee is allowed to bring their dog as an accommodation and leave it at that.

It is also reasonable to be concerned that employees may complain about the dog, for instance because the employees are scared or allergic.  Employees have a right to a support dog at work as a reasonable accommodation to a documented disability unless it is an undue burden.  If other employees voice concern, the employer should listen and see if it can address the concerns while still accommodating the disabled employee.  If not, the employer can evaluate whether allowing the dog is now an undue burden.  However, at least one study has reported that pets in the workplace reduce stress for their owner and co-workers as well!

6.  Can the dog spread coronavirus in the workplace?

According to the CDC website, the risk for animals spreading coronavirus to the workplace appears to be low and there is no evidence that animals play a significant role in spreading the virus. Anyone bringing a dog to work will have comply with required workplace coronavirus safety procedures.

 

 

Introduction

On March 19, 2020, Governor Gavin Newsom issued a stay-at-home order for the entire state of California (with an exemption for essential workers) causing many public agencies, businesses, and schools to shut their doors. In an effort to reopen California’s economy, Governor Newsom announced a Resilience Roadmap setting out a four-stage plan that modifies the statewide stay-at-home order and gradually permits some non-essential businesses to resume operations. While many employers are eager to reopen and have their employees return to work, it is crucial to have a plan in place to address the different issues that may arise in having employees return to the worksite. Federal, state, and local officials are issuing new orders and guidance regularly, so the tips in this blog post may change as the applicable guidance and orders change. Employers should continue to monitor the applicable federal, state, city, and county guidelines to confirm whether their county is reopening at the same pace the Governor set for the state.

Assess the worksite and establish a plan

Employers should first assess their worksites to ensure that they are safe for employees to return to work. Employers should establish a written, worksite-specific COVID-19 prevention plan at every office location, perform a comprehensive risk assessment of all work areas, and designate a person at each office workspace to implement the plan. The California Department of Public Health and Cal/OSHA have issued industry guidance and industry checklists to help employers create and implement an individualized plan to prevent the spread of COVID-19. Employers should post their checklist in a place visible to employees and the public.

Part of the prevention plan should include deep cleaning of the worksite prior to having employees return and establishing disinfecting protocols that involve regular sanitation of the worksite, as well as an expectation that employees will regularly clean their own personal work areas and surfaces they touch. Employers should also implement physical distancing guidelines, which may include laying out markers to guide employees in staying six feet apart, discontinuing non-essential travel, and limiting in-person meetings.

Communicate with and train employees

It is important that employers communicate with employees on how they can protect themselves from COVID-19 and carefully consider how they will decide which employees should return to work. Employers should provide employees with reasonable advance notice of returning to work and should note which employees will stay home due to various reasons, such as for health-related or childcare reasons. Consider staggering work schedules where possible, especially for those in high-risk groups or those who may not feel comfortable returning to work at this time. Prior to reopening, employers should also train employees on the worksite’s prevention plan on how to limit the spread of COVID-19. Employees should be encouraged to use face coverings when they are in the vicinity of others, while at work, in offices, or in vehicles during work-related travel with others.

Establish a procedure for testing and checking for signs and symptoms

Employers should implement screening procedures for all employees at the beginning of their shift and before entering the workplace, which may include daily self-checks, temperature checks, masks, and symptom and exposure screening. The Center for Disease Control and Prevention has helpful guides on how to test for signs and symptoms. If an employee is sick or experiences any COVID-19-related symptoms, the employee should notify their supervisor and stay home. Employees should not return to work until they have met the criteria to discontinue home isolation.

Other considerations

Employers should carefully examine plans to reopen their worksites as well as any plans that require non-essential employees to return to work.  They should also take into consideration the potential for increased exposure to workers’ compensation liability. Typically, under California’s workers’ compensation system, an employee must prove they were injured on the job in order to qualify for workers’ compensation benefits. In response to COVID-19, Governor Newsom signed Executive Order N-62-20, which creates the rebuttable presumption that an employee’s COVID-19-related illness arose out of the course of employment for the purpose of awarding workers’ compensation benefits. Under this order, an employee is presumed to have contracted a COVID-19-related illness at work if they were diagnosed with COVID-19 or tested positive for it within 14 days after returning to their worksite during the period between March 19, 2019 and July 5, 2020. Overcoming this presumption may be difficult for employers because they will have the burden of proving that the employee contracted COVID-19 outside of the workplace.

Employers should also consider reducing personnel at worksites by permitting employees to continue (or begin) teleworking full-time or part-time, or implementing staggered or alternative work schedules to reduce the number of personnel in the workplace at any one time.

For those employees who are sick or exhibiting symptoms of COVID-19, employers should communicate sick leave options that may be available to employees, including but not limited to Emergency Paid Sick Leave, Emergency Family Medical Leave, FMLA/CFRA, local and state paid sick leave, and other employer-provided leaves.

This blog provides an overview of the steps employers should consider prior to having employees return to work. Each plan must be unique and tailored to each worksite. LCW assists public and non-profit employers in drafting tailored policies for reopening the workplace.

As more businesses start to reopen, the COVID-19 pandemic will have long-term effects on the work environment beyond temperature checks and social distancing protocols.  One impact is that it may be harder for employers to justify denying a disabled employee’s request for an accommodation to work from home.  Whereas employers previously may have been reluctant to allow employees to work from home, Governor Newson’s March 19, 2020 Stay at Home Order and local county orders have forced employers to adapt quickly to the new normal of telecommuting.   With this change comes a new perspective on whether employees can perform their essential job duties from home.

Under the California Fair Employment and Housing Act (“FEHA”), the Americans with Disabilities Act (“ADA”), and Section 504 of the Rehabilitation Act of 1973, an employer is required to engage in the disability interactive process when an employee or applicant requests an accommodation for a disability or when the employer becomes aware of a need for accommodation.  The FEHA and ADA make it unlawful for an employer to fail to make a reasonable accommodation for the known physical or mental disability.  The exception to this requirement is if the accommodation would create undue hardship for the operation of the employer’s business or would impose a significant risk of harm to the health and safety of others.

Accommodations to Work from Home Prior to the COVID-19 Pandemic

Even before the COVID-19 pandemic, the FEHA regulations expressly provided a reasonable accommodation could include permitting an employee to work from home.  (Cal. Code Regs. tit. 2, § 11065(p)(L).)  The Ninth Circuit has also recognized that “on-site presence is not required for all jobs” because some employees are able to adequately execute all work-related tasks from home.  (Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1239 (9th Cir. 2012).)

Workplaces Have Made Telecommuting Work

Based on the Stay at Home Order, many employees have now been working from home for over 12 weeks.  This has provided both employers and employees with an opportunity to try telecommuting on a long-term and workplace-wide basis.

Moving forward, when a disabled employee make an accommodation request to work from home, it may be more difficult for an employer to deny the request based on some justification that the employee needs to be physically in the workplace.  Some employees will be able to point out that they were able to telecommute and accomplish their essential job duties during the COVID-19 pandemic.  This could undercut arguments that allowing a disabled employee to telecommute is an undue hardship.

Courts will consider past instances of telecommuting to determine whether an employee can be reasonably accommodated to work from home.  In the unpublished case from California, Henry v. Pro*Act, LLC, an employer refused to allow an employee to work from home after the employee was recovering from surgery.  In determining that the employer could have made a reasonable accommodation available, the court stated it was important that the employer had previously allowed the employee to work from home after prior surgeries. (Henry v. Pro*Act, LLC, 2014 WL 12567144, at *8 (C.D. Cal. Dec. 30, 2014).)

In another unpublished federal case from California, Rezvan v. Philips Elecs. N. Am. Corp., an employee made repeated requests to work from home when she suffered severe pain or infection related to her rheumatoid arthritis.  Her employer repeatedly refused the requests and claimed the employee’s job as a Contract Manager required regular onsite attendance.  After the employee filed a lawsuit alleging refusal to accommodate a disability, the employer presented evidence that the employee’s absences negatively impacted other employees.  However, the court took note of evidence that the employer had previously allowed another Contract Manager to work remotely full-time for ten months without any issues.  The court found that there was a genuine dispute regarding whether regular onsite attendance was an essential duty of the Contract Manager position. (Rezvan v. Philips Elecs. N. Am. Corp, 2016 WL 8193160, at *4 (N.D. Cal. Dec. 15, 2016).)

Boost of Technology

During the Stay at Home Order, many workplaces began utilizing their existing technologies on a more frequent basis and adding new technologies to ease the transition to working from home.  Video conferences and conference call phone lines have replaced in-person meetings and trainings.  An employee’s ability to remote into his or her work computer has allowed access to work as if the employee never left his or her desk.  The ongoing shift to paperless work environments has allowed employees to access more documents electronically, thereby reducing the need to visit the printer and copying room.

With these technological improvements comes an ease in ability to telecommute.  The U.S. Court of Appeals for the 7th Circuit foresaw the impact technology would have on accommodation requests to work from home 25 years ago.  In Vande Zande v. State of Wis. Dep’t of Admin., the 7th Circuit determined that the employer was not required to allow a disabled employee to work from home where their productivity inevitably would be reduced.  However, the Court also predicted: “This will no doubt change as communications technology advances…”(Vande Zande v. State of Wis. Dep’t of Admin., 44 F.3d 538, 544 (7th Cir. 1995).)

Learning to Work Together While Apart

On a coworker-to-coworker level, employees have learned how to communicate and facilitate work projects with each other while working apart.  While technology cannot fully replace the comradery of face-to-face interactions with coworkers, people will have a better understanding of how they can continue to work together effectively from different locations.  Disability interactive process accommodations to work from home will be less of a hardship when telecommuting fits in to the normal workplace culture.

Flexibility is Key

Even after people are allowed to return to the workplace, employers are encouraged to continue allowing employees to work from home.  For example, the May 29, 2020 County of San Diego Public Health Order states that all essential businesses and reopened businesses shall make every effort to use telecommuting for their workforces.  As some employees begin to return to work, other employees such as those who are considered high-risk populations for COVID-19 reasons, may request to continue to work from home.

When engaging in the interactive process with disabled employees who request an accommodation to work from home, employers should carefully analyze whether or not telecommuting imposes an undue hardship on the employer’s operations.  While some employees perform duties that necessitate presence in the workplace (for example, public safety employees, water treatment operators, and notaries), other employees who have been telecommuting during the COVID-19 pandemic may have already demonstrated their abilities to perform essential job duties from home.

On June 15, 2020, the United States Supreme Court ruled that Title VII of the 1964 Civil Rights Act protects gay and transgender employees from discrimination.  The Court’s decision was 6-3 and the opinion was authored by Justice Gorsuch, who was joined in the decision by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan.

Title VII of the 1964 Civil Rights Act is the federal law that prohibits discrimination in employment on the bases of race, color, religion, sex and national origin.  At issue before the Court was whether the word “sex” in Title VII protects employees from discrimination on the basis of their sexual orientation or transgender status.   Before the Court were appeals of three cases where the employers allegedly fired long-term employees for being homosexual or transgender.  First, in Bostock v. Clayton County, Georgia, a county employee was fired for conduct “unbecoming” a county employee after he joined a gay softball league.  Second, in Altitude Express, Inc., et al.  v. Melissa Zarda and William Allen Moore, Jr., a skydiving company fired an instructor days after he said he was gay.  Third, in R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, et al., a funeral home fired an employee 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.”

The Court ruled that the plain language of the statute – prohibiting discrimination “because of” sex – incorporates discrimination based on sexual orientation or transgender status.  The Court stated:  “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”  For example, if an employer fires a male employee for being attracted to men, but does not fire a female employee for being attracted to men, the employer’s decision is based on sex.  The Court explained that “homosexuality and transgender status are inextricably bound up with sex . . . . because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”

Concluding that the plain meaning of the text of the statute is clear, the Court found no need to look to legislative history or other sources to interpret the law.  However, the Court rejected the employers’ arguments that prohibiting discrimination on the basis of homosexuality or transgender status was not the intent of Congress at the time the law was passed in 1964:  “But to refuse enforcement just because of that, because the parties  before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.”

Finally, the Court noted two other issues raised by the employers relating to the impact of this decision, but concluded they were not before the Court at this time.  First was the balance between religious liberty and Title VII.  The Court explained that while in the future employers may be able to raise an argument that free exercise of their religion interferes with their compliance of Title VII, none of the employers before the Court had presented that argument.  Second, employers raised concerns that extending Title VII to protect transgender employees will cause societal upheaval with bathrooms, locker rooms and dress codes.  Indeed, this was a large focus of the oral argument on these cases.  However, the Court stated that this issue was not before the Court and did not address whether a sex-segregated bathroom would violate Title VII:  “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’ …   Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.”

The Court’s decision is a landmark ruling for LGBTQ employees throughout the United States.  Under California law, the Fair Employment and Housing Act already prohibits discrimination against employees based on sexual orientation, gender identity, and gender expression, including transgender status.  Thus, this ruling does not change the legal landscape for California employers, but it will allow homosexual and transgender California employees who believe they were discriminated against by their employers to bring lawsuits under Title VII.  In addition, under California law, employers (1) must allow an employee to use the restroom or locker room that corresponds to the employee’s gender identity or expression; (2) are required to refer to employees using the employee’s preferred name, gender, and pronouns, and (3) may not enforce dress codes more harshly against an employee based on their gender identity/expression.

Bostock v. Clayton County, Georgia, United States Supreme Court Case No. 17–1618 (June 15, 2020)

Amid the ongoing COVID-19 pandemic, employers have developed various leaves of absence plans to support employees who contract COVID-19 or come in close contact with a COVID-19 patient.  Since the state’s phased reopening began about a month ago, employers have been developing such leave plans to ensure adequate balancing between the need to reopen and the need to maintain a healthy environment for their employees.   While the pandemic has brought many things in the world to a halt, for the most part new employment laws that were already set to take effect this year are nevertheless becoming a reality for employers whether they are ready or not.  This reality has certainly ensured that employers, public and private, have their hands full.  From AB 5, codifying the ABC test to determine whether a worker is an independent contractor or employee, to AB 9 extending the statute of limitations to file discrimination complaints to three years, and many others.  Thus, with an effective date of July 1, 2020, it is easy to see how SB 83 would fall off an employer’s radar.

SB 83 extends the duration an employee may receive Paid Family Leave (PFL) benefits from six weeks to eight weeks effective July 1, 2020.  Keep in mind that some entities, such as most public employers, are by default excluded from PFL.  In other words, the PFL only applies to a public employer if it elects to participate in the program, and the election to participate is based on negotiation between the public employer and a recognized employee organization.

In 2004, California became the first state to provide PFL.  The state funds the PFL through the State Disability Insurance (SDI) fund and currently provides for up to six weeks of benefits to employees taking time off from work to care for a spouse, child, grandparent, grandchild, sibling, or domestic partner, or to bond with a minor child within one year of birth or adoption.

SB 83 extends PFL from six to eight weeks. The PFL does not provide for job protection.  Rather, employees may qualify for job protection through other leave laws such as the Family Medical Leave Act or the California Family Rights Act.  The PFL simply provides employees with compensation of 60%-70% of their gross wages during their leave.  Additionally, SB 83 increases the wage replacement benefit for low-wage workers to up to 90% of their gross wages.

Arguably, the ticking time bomb in SB 83 is the requirement that the Governor submit a proposal extending PFL to six months by 2022.  Given the prevalent political environment in California, employers should fully anticipate that PFL will extend to six months by 2022.  The six-month benefit extension will be limited to baby bonding leaves.  Further, the six-month duration will be a total if both parents claim PFL benefits.  For example, each parent can receive PFL benefits for three months, or one parent can receive all six months. Since PFL does not currently provide job protection, employees will not be entitled to job protection during this time period.  Nevertheless, it is wise to anticipate that the legislature will modify existing law or enact a new law to provide job protection to employees opting to receive the full six months of benefits.

The obvious impact of this change is that eligible employees are soon likely to take leave for eight weeks rather than six weeks.  Further, should the six-month extension move forward, eligible employees will likely take as much time as PFL provides benefits, so long as they have corresponding job protection.

So, what should employers do?  If PFL applies to your entity, then now is the time to review leave policies, procedures, and practices.  The new PFL may be moot if you already offer your employees more generous leave benefits. Moreover, if a union represents the employees, the Memorandum of Understanding between management and the union may govern this issue as well.  As you modify your leave policies and evaluate how you will handle the six-week to eight-week change, it is prudent to prepare for the six‑month PFL extension.  Connecting with your attorney to revise or draft a leave policy consistent with the ever-evolving leave laws is the wise decision.  Essentially, preparation is key; as the old saying goes: failing to prepare is preparing to fail.