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.

Our nation continues to react to the death of George Floyd, and this reaction includes the thousands who have participated in mass protests across the country.  Many people feel compelled to speak openly and passionately about an issue of national importance.  Public employees likely wish to express their views as well, and this includes not only those working to keep local government running effectively, but the public safety personnel now working to keep the peace.

The following question and answer discusses the speech rights of public employees and how agencies can respond to the expression of their employees in different types of scenarios during the current conditions.

 1.  What First Amendment rights do public employees have in relationship to their own employers?

In most circumstances, public employees have a right under the First Amendment to speak freely without adverse action from their employer if three requirements are met.  First, the employee must speak on an issue of “public concern.”  This includes topics of importance to the nation or community at large.  Second, the employee must speak outside the scope of their “official duties.”  This means the employee’s speech must not constitute the activity they are expected to do as part of their job.  Third, the speech must satisfy a balancing test between the government interests of the employer under the circumstances and the speech rights of the employee.  If what an employee says causes or sufficiently threatens to cause disruption to the agency, then the employee will not prevail on this third step and the speech will not have First Amendment protection.

Under this test, the subject matter of the recent protests constitutes one of “public concern.”  Yet, a police officer making statements in attempting to de-escalate a conflict during a protest, or speaking at a press conference hosted by her agency, would likely not have protection for his or her speech because the officer would be communicating as part of “official duties.”  The agency has the right to critique the officer’s performance in dealing with the situation without regard to First Amendment rights of the officer.  But if an agency employee participates in a protest on their own time, their expressive activity is not pursuant to “official duties,” and if no disruption to the agency results or is sufficiently threatened, the employee will likely have First Amendment protection for their expression.

2.  What if an employee asks for time off to engage in peaceful protesting?

An agency in responding to the request for time off should treat it in the same manner as it would treat such a request based on other general personal reasons.  If the agency allows time off only for protected leaves including sick leave, for vacation scheduled in compliance with agency policy, or for other narrowly defined reasons, it does not need to make an exception for protest activity.  But if the leave policy allows impromptu or short-notice personal days for any reason, the agency should allow the leave and indeed would risk a free speech retaliation claim in denying it based on the expressive conduct the employee intends.  If the agency suffers from short staffing (and this is likely under current conditions), it can deny the leave consistent with their current policies but has to make clear it would have denied the leave regardless of what activity the employee intended.  The agency has to make clear it is not effectively punishing the employee for the view they intend to express or for the personal activity in which they plan to engage.

3. What if an employee’s protesting leads to their arrest for curfew violation or for other civil disobedience? What about criminal misconduct?

Under Labor Code section 432.7, except in cases involving police officer employees, an employer may not take disciplinary action against an employee based solely on the employee’s arrest.  To avoid free speech concerns, the employer’s response should not constitute or appear to constitute punishment or disparate treatment based on viewpoint.  If the employer investigates and confirms the employee engaged in wrongdoing, including something on the level of a curfew violation, the employer should not impose more harsh discipline because the conduct took place in the course of expressive activity and should not create the appearance that this is the case.  Doing so could lead to claims that the employee suffered more harsh discipline for having aligned with viewpoints related to the protests.

4.  What if an employee engages in a protest and expresses hostility toward the agency?

In this scenario, because the expression is on a matter of public concern, and the employee does not act pursuant to “official duties,” a balancing test applies that weighs that agency’s legitimate interests against the employee’s speech interests.  Courts recognize that under constitutional free speech principles, public employees have the right to criticize their own employers and will uphold that right unless the employer can point to sufficient harm to their operations or functioning, which can include disruption in the workplace.  If the employee violates certain important rules in their expression, this can serve as the basis for discipline consistent with the balancing test – these can include rules against divulging confidential information of the agency, or rules against an employee improperly representing themselves as speaking for the agency.

Aside from the First Amendment, other laws including the California Constitution to some extent protect the privacy of employees in their off-duty conduct.  Employers can only control off-duty conduct in limited circumstances when an employer’s legitimate workplace interests outweigh an employee’s right of privacy in personal activities.

5. What if employees turn to social media to engage in harsh criticism or hate speech regarding their colleagues who participate in the protests?

An agency can take action against the employees consistent with the First Amendment if the balancing test described above has been met.  In supporting such action, it is important that the employer make the required showing of impact on the agency.  A public employer can potentially make this showing by demonstrating that the postings harm the reputation or credibility of the agency, render the employee unable to perform his/her duties satisfactorily, impair working relationships with fellow employees, or hinder the agency in managing and directing its work force.

6. Does an agency need to allow workplace signs, e-mail signature blocks, clothing, or other symbolic expression in the workplace regarding the protests?

This depends on what workplace rules the agency currently has governing display of personal items at work, dress codes, and similar matters.  Under constitutional free speech principles, a public employer can generally have such rules as long as they are “reasonable” and “viewpoint-neutral.”  If the employer’s rules preclude such expression and it has consistently enforced those rules, the employer is entitled to enforce them now.  But if the employer has, for example, allowed employees to use various personal messages in their e-mail signature, then the employer will have difficulty arguing now that employees cannot use messages related to the protests (unless the employer can show disruption would result or other sufficiently important administrative reasons).  Also, if the agency adopts rules now in order to block expression related to the protests, a Court could regard this as retaliation for free expression and an attempt to censor a certain viewpoint in violation of the First Amendment.  (As a caveat, special rules apply to expression pursuant to state labor relations laws – the California Public Employment Relations Board (“PERB”) has held that public employees have the right to display union insignia and messages regarding working conditions, and that rules to the contrary are presumptively invalid.)

It is important to note that the mass protests involve issues related to the Fair Employment and Housing Act (“FEHA”) protected classification of race, and the general tone of the protests could expand to other protected classifications; they possibly have already done so.  Employers have to consider that their conduct related to the protests could rightly or wrongly serve as evidence in cases in which the agency’s employment practices are challenged under those laws.  Sensitivity and courtesy in these matters is key, and agency employees committed to the public interests may be willing to voluntarily refrain from, or decline to object to, their colleagues’ expression in the interest of harmony in an important time for the organization.

7.  Can an agency coach employees about their speech during times of mass protest?

An agency can do so, but should avoid appearing to tell employees what views to express or coercing employees to remain silent or express viewpoints they do not share.  California has statutory laws against employers coercing political activities of employees (Gov. Code, §§ 1101, 1102), and appearing to force an employee to endorse a certain viewpoint on a public issue can lay the groundwork for a later claim of First Amendment violation.  But reminding employees of the heightened sensitivities in the current times and how important their role is in maintaining order and positive relations with the public can benefit the agencies and the employees themselves.  The employer can point out in a well-meaning way if warranted that in dealing with the public and other agencies and organizations, now is not the time for comments that can be misinterpreted, spontaneous remarks that one will later regret, or taking a tone in conversations that is likely to provoke conflict.

8. Are there other laws aside from the First Amendment potentially relevant to employees’ involvement with mass protests?

There are a number of others.  For example, if employees are speaking about their wages, hours, and working conditions, then state labor relations laws like the Meyers-Milias-Brown Act are potentially invoked and have to be considered.  Speaking out about race, religion, gender, and other protected classifications when related to conduct in the workplace can invoke the protections of anti-discrimination laws like the FEHA, and employees’ pointing out alleged illegal conduct of their employer can have the protection of statutory whistleblower laws.

In addition, Government Code section 3203 limits the right of cities, counties and most districts to place any restriction on the “political activities” of their employees.  Employers, however, can place limits on political activities of employees on work time or on the agency premises.  (Gov. Code, § 3207.)  Also, under state law, employees of local agencies cannot participate in political activity while in uniform.  (Gov. Code, § 3206.)  There are additional rules for public safety and fire personnel.

Free speech questions present complex legal issues, and it is prudent to seek advice of counsel.  This is certainly true at this unprecedented time in our history when agencies must make important decisions quickly.


This Memorial Day weekend marks the 24th anniversary of the disappearance of Kristin Smart, a student at Cal Poly San Luis Obispo who disappeared in the early morning hours of May 25, 1996 while walking to her dormitory following a party.  Kristin Smart was reported missing to the Cal Poly Police Department two days later, but believing the student may have taken a trip for the holiday weekend, university police were slow to investigate. It was quickly learned that that a male student living in a Cal Poly dorm accompanied Kristin back to her dorm that night and may have been the last person to ever see her.

Despite Kristin’s disappearance under suspicious circumstances, university police retained primary responsibility over the investigation which lacked the rigor necessary for an investigation of this magnitude.  Many believe this resulted in the loss of potentially critical evidence and leads even with increasing indications that Kristin may have been taken to the primary suspect’s dorm. It was not until weeks later that the investigation was handed off to County law enforcement as university police realized they were ill-equipped to handle the case of a missing student presumed to be the victim of a fatal crime. By this time university dorms were vacated and cleaned for the summer before any forensic examination of a potential crime scene.

To this day, Kristin Smart remains missing and is presumed dead while no person has been tried in her disappearance. As Kristin’s case has remained “active and ongoing” with local law enforcement, as well as the Federal Bureau of Investigation, this unsolved case was recently reignited in the media due to a true crime podcast and law enforcement activity surrounding the prime suspect.

Kristin’s parents championed the Kristin Smart Campus Safety Act that became law in 1998.  The legislation, codified in California Education Code sections 67381, requires community colleges and universities to have in place written agreements with local law enforcement outlining the operational responsibility for Part 1 violent crimes occurring on each institution’s campuses.  Local law enforcement agencies must enter into written agreements with campus law enforcement agencies if there are college or university campuses located in the jurisdictions of the local law enforcement agencies.

The written agreement must designate which law enforcement agency shall have operational responsibility for the investigation of each suspected Part 1 violent crime and delineate the specific geographical boundaries of each agency’s operational responsibility, including maps as necessary. Part 1 violent crimes, as defined, include willful homicide, forcible rape, robbery, and aggravated assault.  Notwithstanding, campus law enforcement maintain primary authority for providing police or security services, including the investigation of criminal activity, to their campuses.  These written agreements must be in place and available for public viewing.

While the Kristin Smart Campus Safety Act outlines the minimum requirements for written agreements between campus law enforcement and local law enforcement, these agreements can contain other agreements, including cross-training between the agencies, communication protocols and resource sharing.

The Act is one of several and often overlapping laws aimed at protecting students and addressing the obligations of colleges and universities in responding to crimes, threats and harassment.

When the COVID-19 outbreak reached California, schools throughout the state converted traditional classes to a distance education model for millions of students seemingly overnight. Distance education programs rely on a combination of websites, programs/applications, and other technologies to deliver content, facilitate communication, administer exams, and more. Video conferencing applications (e.g., Zoom) with screen sharing features allow educators to recreate live classes online and have become invaluable remote teaching tools. This sudden and unprecedented reliance on these technologies raises urgent questions regarding student privacy and specifically pupil records.

In California, public school districts must comply with specific laws regarding pupil records and educational records set forth in Education Code sections 49060, set seq. These provisions largely mirror the Family Educational Rights and Privacy Act (“FERPA”). They give parents/students certain rights with respect to pupil records and prohibit the unauthorized disclosure of information contained in pupil records unless a specific exception applies. “Pupil records” is broadly defined as “any item of information directly related to an identifiable pupil” that is maintained or required to be maintained by a school district, “whether recorded by handwriting, print, tapes, film, microfilm, or other means.” (Ed. Code, § 49061(b).) This includes photographs or videos if they depict an identifiable pupil and are “maintained by a school.” (See 84 Ops.Cal.Atty.Gen. 146.)

On March 30, 2020, the Student Privacy Policy Office within the U.S. Department of Education provided guidance to schools and colleges navigating FERPA in the online environment. The Department of Education clarified that:

  • Video recordings of virtual classes qualify as pupil records only if they directly relate to a student and are maintained by the educational institution or a party acting on its behalf;
  • Even if it does not qualify as pupil records, a video recording of a virtual class cannot be shared without appropriate authorization if it contains personally identifiable information (“PII”) from pupil records;
  • FERPA does not prohibit non-students from observing virtual class sessions so long as PII from a pupil record is not disclosed;
  • Classes may be recorded and shared with students who are unable to attend as long as PII from a pupil record is not disclosed or appropriate written consent is obtained for such disclosures;
  • Teachers may conduct meetings with parents/students over video conference but should ensure that such conversations are not overheard by third parties (such as the instructor’s spouse); and that
  • If circumstances effectively prevent a parent from exercising his or her right to inspect and review education records, then the school is required to either provide a copy of the records or make other arrangements that would allow the parent to inspect and view the requested records within 45 days of receiving the request.

The guidance did not address when an electronic recording is “maintained by the school,” which is necessary to determining what recordings constitute a pupil record in the first place. The question of when an electronic record is “maintained” by the school is complex.

Notably, the recent Department of Education guidance states that class recordings are pupil records if they are maintained by the school or a party acting on behalf of the school. This latter reference goes beyond the plain language of the law and appears to contradict S.A. and other authorities. The guidance is not binding authority, but may indicate that the Department of Education (which enforces FERPA) is taking the position that electronic records can be pupil records under FERPA even if they exist on servers not belonging to the school district. If that is the case, schools may face challenges with respect to a student/parent’s right to review and amend pupil records.

For instance, a recording of a virtual class session where multiple students appear on a video conference call and discuss their work and/or personal experiences may constitute a pupil record for each of those students. (U.S. Department of Education “FAQs on Photos and Videos Under FERPA.”) If one of those students request to review the pupil record, the student only has a right to review the specific information directly related to him or herself, and the school must take reasonable steps to redact or segregate the information. (U.S. Department of Education Letter to Wachter (Dec. 7, 2017).) If a recording that is a pupil record for multiple students and cannot be segregated and redacted without destroying its meaning, a student/parent may review the record even though it contains another student’s information. (Id.)

Given that many schools will continue distance education in at least some capacity into the next school year, we are likely to see more of these issues come up. School districts should speak to their vendors and/or IT departments about how and where class recordings are or will be stored and the district’s ability to reasonably redact or separate video recordings.

I’ve been working from home since March 16, 2020 when my children’s school closed.  I am not alone – with the COVID-19 pandemic and safer at home orders, many employees across the country have been working from home.  While restrictions may be easing, without schools reopening, many parents are balancing their roles as teachers, parents, and employees.

In non-pandemic times, I enjoy occasionally working from home.  A quiet house all to myself!  I’m super productive without daily office interruptions.  And when I take out the commute from my daily routine, I could get a full day of work done plus a load of laundry, prepping dinner, and walking the dog by the time I would normally get home.  So this transition to working at home full time should have been easy, right? Far from it.

I am working from home with my husband (also an attorney) and our two children – a preschooler (age 3) and a kindergartner (almost 6).  In addition to our attorney work, we need to supervise, engage, and educate our kids all day, which includes what feels like constant meals and snacks.  We also try to keep to some resemblance of order in our house which now constantly has dishes to wash and cleaning to be done.  This is not how working from home used to be.  But two months in, I’ve come up with some pointers to succeed at litigation and homeschooling.

Before I go any further, I am incredibly grateful to be safe at home with my family.  I am thankful to all our essential workers, first responders, and medical professionals working tirelessly to keep us safe.  I am grateful that my children’s school provides engaging distance learning– including several different Zoom classes a day and assignments, and that we have the resources at home to use this technology.

While there has been no shortage of articles with work from home tips, I haven’t found them particularly helpful. For example, tackling the hardest task in the morning is difficult with hectic mornings.  I also find making a routine work schedule challenging since I have to balance my children’s school schedules and my husband’s work schedule.  My kids are young, so we can’t leave them on Zoom unattended, and we need to work with our kindergartner on his assignments.  And even when I am working, they know I’m home, so it’s hard not be interrupted, whether for a potty emergency or snack request.

Since it will likely be a long time since schools re-open and there are many parents of young children working from home, I wanted to share some strategies that are helping me navigate this new reality:

  1. Trade Off Work and Childcare. When my husband and I are both trying to focus on work at the same time, it often backfires.  If you are fortunate to have a partner or another adult at home, trade off on childcare/schooling responsibilities.  That way everyone has some alone time to focus on their work and the kids are engaged.
  2. Carve out work and family time. I try to carve out time to focus fully on my kids, and also carve out time for work.  For example, one day I set up the easel and had a messy painting project with my 3 year old while my son had his kindergarten meeting.  My 3 year old was so happy to have one-on-one time with me and it put us both in a good  mood for the rest of the day.
  3. Don’t stress the mess. I get a little stressed when everything is messy.  But with two adults, two little kids, and a dog home all day, it gets quite messy.  We are encouraging everyone to do their share, but with all our responsibilities these days, if you are stressing about a messy home, probably best to focus on the more important things.
  4. Make time for yourself. You should do this even when it seems impossible because it feels like even though you are home all the time, you have no time.  I was not a runner, but I started running – not only does the exercise feel good, but I enjoy having time to myself and getting out of the house.  Maybe it’s a walk, yoga, reading, or making sourdough bread.
  5. Know there are good days and bad days. Yesterday was challenging and my son was upset because our rug was a different color than this classroom rug and it broke my heart.  Today, we happily got through all their assignments and made cookies too!
  6. Adjust Expectations. Unless you have superpowers, at least for a while you probably won’t get through what used to be your normal amount of work each day, get through all the homeschooling lessons, bake bread, clean the house, workout, and never let your children watch T.V.  Instead, reset your daily expectations to a more doable amount.
  7. Most important, try to stay positive and find the silver lining. This is a really scary and stressful time for everyone. It’s hard for grownups and children.  When I get stressed and worried about trying to get all my work done while being there for my children and all the scary things happening in the world, it’s overwhelming.  But then I remember they miss school and their friends, and I don’t want to pass my anxiety to them.  Years from now, I don’t want them to remember the quarantine as miserable and stressful.  Instead, I hope our family can look back on it and remember that even though we missed school and friends and worried about the world, we valued our extra family quality time.  Be grateful for the silver linings.  For me, it’s the more relaxed weekend pace – not rushing from soccer to birthday parties – and more involvement in my children’s lessons.

Using these strategies, my working from home has become more effective, and homeschooling tends to go smoother. Although the courts are closed to the public, litigations are still active and many deadlines remain in place.  Right before the stay at home orders were issued, I received a new lawsuit, and since the orders went into effect, two more.  With litigation flowing, I rely on these strategies to manage working from home, parenting, and homeschooling.  Now off to Zoom P.E. class with my kids!

Lawyers at our firm have practiced constitutional law for many years, and the coronavirus pandemic has presented circumstances in this area that many of us probably thought we would never see.  Under normal principles of First Amendment law, speech in a traditional public forum such as a city park has a high level of protection from any interference from the government, regardless of content or viewpoint expressed.  As to religion, under the First Amendment’s free exercise clause, the public has vitally important rights to worship without fear of significant state interference.  The First Amendment also protects the right to “assemble” and the right to association.  All of these are core constitutional rights. For many decades, plaintiffs fought hard in lawsuits alleging even slight violations of these core rights.  These suits can lead to damages, injunctive relief, and attorneys’ fees awards against government agencies.

The last two months, however, have seen unprecedented extremes in this area.  Governments have altogether shut down traditional and designated public forums.  They have, in some parts of the country, taken steps actually to halt in-person assemblies of individuals to worship.  Agencies have had to stop all but the most limited forms of in-person association in other contexts of normal life.  In addition, members of the public who gather to protest the government’s response to the pandemic face the potential obstacle of violating requirements to stay at home, or rules on closure of the forum at issue.

How do the standard rules of constitutional law bend, but not break, in these circumstances?

Closing a Public Forum: As a general rule, a public forum created by the government can be closed for expression so long as the action does not result from a desire to censor particular speech or speakers.  Examples of forums opened by the government for expressive activity include a public facility with a designated speaker’s corner or speech area, or an agency listserv or electronic message board for public speech on any topic.  Courts have held that the government cannot close traditional public forums, like parks or streets for expressive activity, assuming they remain open.  But governments do close them to public access at time in a content- and viewpoint-neutral manner, just as a city closes certain public areas overnight.  Also, even in a traditional public forum that remains open, the government can regulate expressive activity using valid “time, place, and manner” regulations if the regulations meet certain requirements, including that they serve a sufficiently important purpose.  A court can determine that preventing the spread of coronavirus serves such a purpose to justify closing a forum for a longer period.

Free Exercise of Religion: The U.S. Supreme Court has described that a free exercise challenge to a law will fail in the face of a “valid and neutral law of general applicability.”  The primary case, from 1990, involved a religious group that challenged the criminal law against use of peyote on the basis that taking the substance had traditionally constituted an important part of that group’s religious practice.  The Supreme Court in Employment Division v. Smith held that because the law criminalizing peyote applied to all members of the public and did not target the religious group in particular, application of the law withstood First Amendment free exercise challenge.  In the coming months, courts will consider the same type of reasoning for how the impact of coronavirus justified social distancing applied even to religious gatherings.  In particular, courts will consider the argument that rules on social distancing should withstand free exercise challenge because those rules apply to the public at large and do not target religious groups in particular.  Also, Courts will be asked to take into account that government agencies did not altogether block religious services by social distancing rules, and instead those services could continue remotely by use of 21st century technology.

Rights of Association and Assembly: Courts have not given strong constitutional protection to associating for purely social or recreational purposes, but instead reserve heightened protection to association for political activities, labor relations, religious matters, and other matters considered to have similarly high importance.  Even then, Courts will uphold restrictions on association if the government shows a sufficiently compelling interest and the government cannot achieve the interest through less restrictive means.

Public Employee Speech and Protest: A last important area of constitutional law to consider is the extent to which a government agency can control the speech of its own employees, which could include comments that conflict with or criticize the agency’s response to the pandemic.  In employment litigation, public employees frequently allege that they suffered dismissal or discipline in retaliation for having exercised First Amendment rights – for example, for making allegedly inappropriate comments on Facebook, criticizing management, or whistleblowing to government regulators or the press.  The U.S. Supreme Court has ruled that public employees can successfully sue employers for retaliation under the First Amendment, if among other things, the employee shows they spoke on a matter of “public concern,” spoke in a way that was not pursuant to their “official duties,” and suffered an “adverse employment action” as a result.  Even if the employee’s claim meets these tests, the employer can still prevail in a lawsuit if the reasons for the employment action satisfy a balancing test between the government interests of the employer and the speech rights of the employee.

For coronavirus, the severe public health consequences of how an agency responds to the crisis will likely give an agency more heft in litigating the final element of the test above – balancing of interests.  A government agency will have a stronger case on balancing the more it can show its employee’s speech, for example, statements to the press or postings on social media, somehow disrupted the official response to the pandemic.

One hopes that the status of constitutional law leaves the realm of extremes and returns to normal in coming months – along with all other aspects of life.  We will keep you posted on developments in this area of the law.

This COVID Briefing was authored by J. Scott Tiedemann and Paul D. Knothe

As the COVID-19 pandemic continues, law enforcement professionals bravely continue to perform their duties and come in regular contact with the public, potentially exposing themselves to the virus.  Concerned for the safety of their officers and the communities they serve, law enforcement agencies are pondering the permissibility and wisdom of large-scale testing.  Is it permissible for agencies to require all officers to be tested for COVID-19?  Is it wise?  What about testing of officers who exhibit symptoms or were exposed to persons who are known to have tested positive?

Federal, state, and local authorities have published guidance that can inform agency decisions, but does not answer all questions agencies may have.  On April 19, 2020, the California Department of Public Health published updated interim guidance on prioritization for COVID-19 lab testing.  This guidance divided potential persons to be tested into four Priority groups, and placed symptomatic law enforcement personnel in the second highest priority, labeled Priority 2.  Priority 1 consists of hospitalized patients, symptomatic healthcare workers, persons identified by public health contact investigators and disease control activities in high-risk settings such as congregate living facilities and correctional facilities.

The City of Los Angeles and County of Los Angeles, for example, jointly announced on April 22 that COVID-19 testing would be made available to certain classes of persons, including law enforcement professionals and other first responders, free of charge.  Officers in Los Angeles County who are interested in scheduling a COVID-19 test may do so through this website:  Agencies in other jurisdictions should stay abreast of their local testing programs.

The Food and Drug Administration (FDA) has given emergency approval to certain antibody tests, also known as serological tests, for first responders, and expects to approve more such tests.  These tests do not test for COVID-19 itself, but instead for antibodies the body develops to fight the virus.  It is not clear how much utility there is to antibody tests.  First, antibody tests are prone to false negatives, as the immune system does not begin producing antibodies immediately upon acquiring the virus, and therefore, a person could be infected with the coronavirus and test negative on an antibody test.  Further, the FDA and the World Health Organization both caution that, unlike, for example, the chicken pox,  there is no evidence that being infected with COVID-19 once and developing antibodies will prevent a person from being infected a second time.

Requiring an employee to submit to a COVID-19 test is a medical examination and therefore, like temperature testing, must satisfy the “business necessity” standard under both state and federal law.  On April 23, 2020, the federal Equal Employment Opportunity Commission (EEOC) issued Technical Assistance Questions and Answers that indicate that, from the EEOC’s perspective, business necessity does exist to test employees for COVID-19.  The Department of Fair Employment and Housing, the California agency tasked with enforcing analogous state statutes, has not published any guidance one way or the other on the question.

However, given the frequency with which law enforcement officers come in contact with the public, required testing may be of questionable efficacy and only provide a false sense of security.  As the EEOC Technical Assistance Questions specifically note, “accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.”  Testing asymptomatic officers only shows that they have not acquired the virus as of the moment of the test; they may be exposed on their very next call for service.  Therefore, testing an asymptomatic peace officer on any given date for COVID-19 may not have significant advantages to the officer, the department, or the public beyond those already provided by daily pre-shift temperature testing and rigorous PPE and sanitizing practices.  It may be more efficient for a department instead to only mandate testing for employees who exhibit symptoms or who have been exposed to persons confirmed to have the virus.  If an agency does decide to require or facilitate COVID-19 testing for officers or other employees, it is essential to be mindful of the employee’s privacy rights.  In order to receive and use the results of a COVID-19 test, an agency must obtain a valid Confidentiality of Medical Information Act (CMIA) waiver form the employee being tested.  The CMIA has precise requirements for such waivers, all the way down to the size of the font (14 point.)

Ultimately, there is no one-size-fits-all solution; agencies considering requiring testing of some or all of their peace officers should consult with trusted counsel.

On April 23, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance concerning the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act and how employers may respond to the public health emergency caused by COVID-19. The EEOC makes clear that while the laws will continue to apply during the present public health emergency, the EEOC will not interfere with or prevent employers from following the guidance issued by the Centers for Disease Control (“CDC”) or by state or local public health authorities concerning steps to respond to COVID-19.

Most notably, the new guidance suggests that employers may test employees for COVID-19 if the employer follows certain requirements. In response to the question of whether an employer may administer a test to detect COVID-19 before permitting employees to enter the workplace, the guidance provides:

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.

The guidance further states that employers need to ensure that the tests are safe, accurate, and reliable, and that employers should consider the incidence of false-positives or false-negatives associated with a particular test in order to determine whether such a test is, in fact, reliable.

As noted by the guidance, under the ADA, employers may not require medical examinations of current employees unless the examination is job-related and consistent with business necessity.  Generally, a medical examination will meet this standard when an employer has a reasonable belief, based on objective evidence that an employee’s ability to perform essential job functions will be impaired by a medical condition or an employee will pose a “direct threat” due to a medical condition. In this context, “direct threat” means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The employer must determine that an employee poses a “direct threat” based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. In determining whether an individual would pose such a threat, the employer should consider the following factors:

(1) The duration of the risk;

(2) The nature and severity of the potential harm;

(3) The likelihood that the potential harm will occur; and

(4) The imminence of the potential harm.

The EEOC guidance suggests that employers may test their employees for COVID-19 before the employees enter the workplace. However, given that there is a shortage of testing kits and supplies and that processing such tests requires, at minimum, several days, screening each  employee every day is not feasible. A more likely scenario is that an employer tests some or all employees, who have been away from work, either because they were teleworking or deemed non-essential, prior to those employees returning to the workplace.

Employers should note that, because  employers must perform an individualized assessment as to whether the medical exam is job-related and consistent with a business necessity in each case, an across-the-board mandatory testing policy for all employees that does not provide for exceptions (e.g., no contact with any other individual in the past 14 days), may be impermissible. Employers who elect to adopt such a testing policy and protocol should therefore design such policy and protocol to allow for exceptions where an individual employee may not need to be tested.

The EEOC previously provided guidance that employers may screen for symptoms of COVID-19 and take temperatures of employees. There, the EEOC made clear that the employer must ensure that it maintains records of screenings confidentially. The same requirement would apply where an employer implements a policy for screening employees for COVID-19.  Additionally, in order to receive and use the results of a COVID-19 test, an agency must obtain a valid Confidentiality of Medical Information Act (CMIA) waiver form the employee being tested.  The CMIA has precise requirements for such waivers, all the way down to the size of the font (14 point.)

California law also governs the question of whether medical examinations are permissible. The Department of Fair Employment and Housing (“DFEH”), the state agency primarily responsible for enforcing employment laws in California, however, has not issued any guidance related to employer-required testing for COVID-19 or commented on the guidance provided by the EEOC. However, like the ADA, the Fair Employment and Housing Act (“FEHA”) also authorizes employers to perform medical examinations where the employer can demonstrate that the examination is “job related and consistent with business necessity.”  Although the DFEH has not issued guidance, the analysis under the FEHA is sufficiently similar to the analysis under the ADA such that the DFEH would likely arrive at a similar conclusion when balancing public health and safety against the intrusion into personal privacy.

Under the EEOC guidance, employers may require testing of employees returning to work after having COVID-19 or exhibiting symptoms of COVID-19 if the employer determines under an individualized assessment that the test is job-related and consistent with a business necessity. While the DFEH has not issued guidance, given the public health emergency caused by the COVID-19 pandemic and the threat to workplace health safety that COVID-19 presents, it is likely that the DFEH will come to the same conclusion.

LCW will monitor this evolving situation and will update you if the DFEH issues guidance. Additionally, LCW attorneys can help you with questions about adopting a testing policy.

This COVID Briefing was authored by J. Scott Tiedemann and Paul D. Knothe

A fever, which is defined by the Centers for Disease Control and Prevention (CDC) as 100.4°F/38°C or higher, is a symptom and key indicator of COVID-19.  Many employers, including law enforcement agencies, are already taking or are considering taking employees’ temperatures before allowing them to begin work for the day.

Taking an employee’s temperature is a medical examination, and under normal circumstances, doing so might violate an employee’s rights under the federal Americans with Disabilities Act and the state Fair Employment and Housing Act to require them to submit to the temperature test simply to enter the workplace.  However, medical tests are permissible under both laws if justified by “business necessity,” and during the COVID-19 emergency, until the guidance from federal, state and local health authorities changes.  We believe it is likely courts will agree taking employee temperatures is a business necessity in the context of the pandemic.

Requiring employees have their temperatures taken on reporting to work, however, is also likely a change in the terms and conditions of employment for most employees and generally will require an agency to meet and confer.  We believe that, in the context of the COVID-19 emergency, a temperature-testing program could qualify for the “emergency exception” under the Meyers-Milias-Brown Act.  The emergency exception is applicable when there is an unforeseen situation that poses an imminent and substantial threat to public safety, and where the employing agency reasonably believes that harm will occur if it does not take immediate action.  When the “emergency exception” applies, an agency may implement a change first, in order to confront the emergency, and then meet and confer with the affected associations as soon as practicable thereafter.  It does not excuse an employer from meeting and conferring; it simply changes the timing of it.

It is more likely than not that courts would consider the time spent by employees having their temperature taken to be compensable work time under the Fair Labor Standards Act and/or the California Labor Code.  Federal regulations, at 29 C.F.R. 785.43, provide that time spent by an employee waiting for or receiving medical attention on the premises or at the direction of the employer is compensable work time, and although there is no published authority as to whether taking an employee’s temperature constitutes medical attention, that interpretation is certainly possible.   More importantly, because an employee is subject to the control of the employer while having his or her temperature taken (or  waiting in line to do so), the courts would most likely find this to be compensable working time.  Even if the temperature taking process is run efficiently and requires only a minute or two per officer per day, the courts would likely still find the time to be compensable because the wait occurs regularly and adds up to a larger aggregate amount.  If an employer is looking to avoid additional wages owed when doing temperature testing, it should consider doing the testing during the employee’s shift, rather than pre-shift.

Although there may be some legal risks and costs associated with pre-work temperature testing, we expect that many Departments will find the benefits of temperature testing – namely, limiting the spread of COVID-19 in the workplace – to be well worth the legal risks.  Departments considering implementing temperature testing are encouraged to consult with trusted legal counsel.

The California Public Employees’ Retirement System (“CalPERS”) has answered several outstanding questions concerning how paid leave hours taken under the Families First Coronavirus Response Act (“FFCRA”) should be tracked and reported.  On April 16, 2020, CalPERS issued Circular Letter No. 200-021-20 which explains how to report compensation and track hours for employees taking leave under the Emergency Paid Sick Leave (“EPSL”) and the Emergency Family and Medical Leave (“EFML”) provisions of the FFCRA.

Reporting Hours for the Purposes of Enrollment in CalPERS Membership

The Circular Letter provides that all hours in paid status under the FFCRA will be reported to CalPERS for the purposes of determining eligibility in membership.  For most part-time hourly employees whose hours must be tracked, the paid leaves will count towards the 1,000-hour per fiscal year threshold for enrollment in membership.

Based on this guidance, agencies need to be aware that if they retain employees on paid FFCRA leave beyond the 1,000-hour threshold, they will become eligible for CalPERS membership, unless excluded by statute or under the agency’s CalPERS contract. Once enrolled, the employees must be enrolled in all subsequent fiscal years, regardless of the number of hours worked.

Reporting Hours and Compensation for Retired Annuitants and Permissible Benefits

Under the Public Employees’ Retirement Law (“PERL”) and the Public Employees’ Pension Reform Act (“PEPRA”), retired annuitants may not receive any benefit in addition to their  hourly rate.  However, the definitions for eligible employees under the FFCRA likely includes most retired annuitants.

The Circular Letter provides that retired annuitants may receive paid leave under the FFCRA without violating the post-retirement work restrictions provided under the PERL and PEPRA.  Retired annuitants will not be subject to reinstatement for receiving payments under the FFCRA.

The hours of paid leave a retired annuitant receives under the FFCRA must be reported to CalPERS as hours worked for the purposes of the 960-hour per fiscal year limit.  Under Executive Order N-25-20, any hours worked by a retired annuitant to ensure adequate staffing during the state of emergency do not count toward the 960-hour per fiscal year limit.  The modification of the 960-hour threshold was discussed in a previous LCW post.  However, the paid leave hours are included in the 960-hour per fiscal year limitation for all retired annuitants.

Reporting Compensation for Employees Taking Paid Leave Under the FFCRA

The Circular Letter provides that all paid hours of paid sick leave under the FFCRA are reportable as compensation earnable for classic members or pensionable compensation for new members. CalPERS has also informally indicated that paid leave under the EFML is reportable as well. Generally, the paid leave should be reported in the same manner as other paid leaves.  If an employee supplements any FFCRA leave with other accrued leaves so that they are receiving full pay, reporting of compensation will not differ from any other situation where an employee takes paid leave.

The full-time payrate should not be modified, but earnings may be less than the full-regular payrate where the employee is  receiving less than their regular compensation due to the FFCRA daily caps ($511 for EPSL and $200 for EFML), and the pay is not supplemented with other leaves.

CalPERS has not provided official guidance on how to report compensation when the payment under the FFCRA is less than the employee’s regular compensation because of the FFCRA caps and the FFCRA pay is not supplemented with other leaves.  Nonetheless, we anticipate that in those circumstances, CalPERS is likely to accept reporting of all of the earnings as payrate (up to the employee’s regular payrate) before reporting any of the pay as special compensation.  Reporting earnings this way will have a lesser impact on the service credit earned during the leave period.  In any event, all compensation reported must be reportable under CalPERS’ regulations.  We will provide an update if we receive any additional information from CalPERS on how to report earnings.

We will keep you informed as CalPERS’ guidance evolves.