In light of the current surge in COVID-19 cases, it is important that employers understand their obligations in the event that there is a COVID-19 outbreak at one of their workplaces.

This blog post is intended to provide an overview of the various statutory and regulatory obligations that employers have during an outbreak so that employers can discharge their legal duties and return their operations to normal as soon as possible.

Laws Implicated During a COVID-19 Outbreak

There are two laws that are implicated by workplace COVID-19 outbreaks: (1) Labor Code section 6409.6, which requires that the employer provide notice to the local health department in the event of an outbreak; and (2) the Cal/OSHA COVID-19 Emergency Temporary Standard (“ETS”), which imposes a number of regulatory requirements when there is an outbreak.

Defining “COVID-19 Outbreak”

The Labor Code and Cal/OSHA ETS use similar, but slightly different, definitions for the term “COVID-19 outbreak.” As discussed herein, the difference in the definitions may lead to the unusual or unexpected circumstance where there is an outbreak according to the Labor Code, but not under the Cal/OSHA ETS.

Statutory Definition of an Outbreak under the Labor Code is Broader

The Labor Code relies on the California Department of Public Health (“CDPH”) definition of COVID-19 outbreak. That definition provides that an outbreak means “[a]t least three COVID-19 cases among workers at the same worksite within a 14-day period.” The Labor Code defines “worksite” to mean “the building, store, facility, agricultural field, or other location where a worker worked during the infectious period.” (Lab. Code § 6409.6(d)(7).) As a result of the use and definition on the term “worksite,” the Labor Code provided a definition of “COVID-19 outbreak” that is broader than the Cal/OSHA ETS definition.

Regulatory Definition of an Outbreak under the Cal/OSHA ETS is Narrower

The Cal/OSHA ETS defines the term COVID-19 outbreak to mean “three (3) or more employee COVID-19 cases within an exposed group … [who have] visited the workplace during their high-risk exposure period at any time during a 14-day period.” While the ETS defines the term “exposed group” as meaning “all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period” (8 C.C.R. § 3205(b)(7)), it expressly excludes from inclusion work locations that a COVID-19 case momentarily passed through or that the individual visited for less than 15 minutes while using a face covering. As a result, the regulatory definition of an outbreak is more limited than that under the Labor Code.

The Cal/OSHA ETS definitions allow employers to potentially reduce the number of workplace outbreaks by subdividing their “worksites” into smaller “work locations, working areas, or common areas,” and using these specific locations, as opposed to the worksite generally, to determine when there is an outbreak. As a result, there may be circumstances that would constitute an outbreak under the Labor Code, but not under the Cal/OSHA ETS.

Given the different definitions of COVID-19 outbreaks under the Labor Code and Cal/OSHA, employers may want to consider how they will approach a workplace outbreak and whether they would treat an outbreak under the Labor Code as also constituting an outbreak under the Cal/OSHA ETS, despite the different definitions and more specific regulatory criteria.

Statutory Obligations under Labor Code Section 6409.6

As provided above, the principal statutory requirement under Labor Code section 6409.6 is to provide notice of a workplace COVID-19 outbreak to the local health department.

Under that section, upon learning of a COVID-19 outbreak at a worksite, the employer must, within 48 hours or one business day, whichever is later, notify the local public health agency of the following:

  • The names of the employees who are COVID-19 cases;
  • The number of COVID-19 cases;
  • The occupations of the COVID-19 cases;
  • The worksites of COVID-19 cases;
  • The business address of the worksite; and
  • The North American Industry Classification System (“NAICS”) code of the worksite where the COVID-19 cases work.

The employer must further notify the local health department of any subsequent COVID-19 cases at that worksite. (Lab. Code § 6409.6(b).)

In order to comply with these requirements, and hopefully in advance of an actual outbreak, employers should identify the appropriate contact at the local health department to receive the outbreak notice as well as the form, if any, required by the health department to report COVID-19 outbreaks. As always, employers should monitor COVID-19 cases in the workplace and be prepared to report an outbreak if, and when, there are three or more cases in the 14 day period.

Regulatory Obligations under Cal/OSHA ETS

In addition to the statutory notice obligations, the Cal/OSHA ETS imposes regulatory requirements on employers in the event of a workplace outbreak. (8 C.C.R. § 3205.1.).

COVID-19 Testing

Where there is an outbreak, the regulations require that employers make COVID-19 testing available at no cost to employees in the exposed group during such employees’ paid time. (8 C.C.R. § 3205.1(b).)

Employers must offer this testing immediately after becoming aware of the outbreak and then again one week later. Furthermore, employers must continue to offer such testing to employees in the exposed group until no new COVID-19 cases are detected in the exposed group for 14 days. (8 C.C.R. § 3205.1(b)(2)(B).)

This requirement does not apply to (1) employees who were not present during the 14 day period, (2) symptomless and fully vaccinated employees who were fully vaccinated before the outbreak, and (3) COVID-19 cases who returned to work (for 90 days after their diagnosis/start of symptoms).

Face Coverings and Social Distancing

In the event of an outbreak, employers must also ensure that employees in the exposed group wear face coverings and observe physical distancing. Specifically, employers must ensure the following: (1) employees in the exposed group wear face coverings when indoors, or when outdoors and less than six feet from another person, (2) unvaccinated employees in the exposed group are given notice of their right to request a respirator for their use at work, and (3) the employer implements physical distancing requirements in the workplace and evaluates the need for solid partitions between work stations. (8 C.C.R. § 3205.1(d).)

Employers should document their compliance with each of these requirements.

Investigation and Changes

Finally, employers must immediately perform a review of their COVID-19 policies, procedures, and controls. If such review indicates that changes are needed to prevent the further transmission of the virus that causes COVID-19 in the workplace, such remedial measures must be undertaken. (8 C.C.R. § 3205.1(e).) Employers must document this review and any remedial actions and update it every 30 days until the outbreak has concluded.

In sum, upon the identification of an outbreak at the workplace, employers must immediately notify the local health department and transmit the required information in a timely manner. The employer must then offer COVID-19 testing at no cost to the employees in the exposed group, during such employees’ paid time. This testing should continue to be offered until no new COVID-19 cases in the exposed group are detected. Finally, in addition to reviewing relevant COVID-19 policies and procedures, and enacting any needed changes, employers must also ensure that employees in the exposed group wear face coverings and engage in physical distancing.

The start of the New Year brought with it a new wave of labor and employment legislation that employers should note, including changes to many existing laws. In this blog we’ve summarized a few key new changes that went into effect on January 1, 2022.

1. SB 3: Minimum Wage Increase

The final step increase of SB 3 went into effect on January 1, 2022, bringing California’s minimum wage to $15/hour for employers with greater than 26 employees. As a reminder, recent case law established that the state minimum wage laws apply to both general law and charter cities and counties.

2.  AB 1033: Expanded Family Leave

AB 1033 expands the definition of “parent” under the California Family Rights Act to include a “parent-in-law.” Accordingly, employees are eligible to take CFRA leave to care for parent-in-laws. The bill also makes procedural changes to the small employer mediation program that is in place for employers with 5 to 19 employees. The bill requires that when an employee requests an immediate right to sue letter for a CFRA claim, the Department of Fair Employment and Housing (“DFEH”) must notify the employee in writing that if either party requests mediation, mediation must be completed prior to filing suit.

3. SB 807: Retention of Personnel Records

SB 807 changed the requirements regarding an employer’s duty to maintain and preserve personnel records. Previously, employers only had to maintain such records for two years. Under the new law, however, such records must be kept for at least four years, and possibly longer if a Department of Fair Employment and Housing complaint has been filed. The four-year timer starts from the date the personnel file was created, though the timer “restarts” from the date of termination or “non-hire” of an applicant.

4. SB 657- Workplace Postings

SB 657 states that employers may provide any required workplace postings by email and include any accompanying posters or flyers as attachments. However, the bill explicitly states this does not alter any requirements to physically display the required postings.

5. AB 1561- Extended Exemptions for Determining Independent Contractor Status

AB 1561 amends new legislation from 2019 determining when a worker is an employee or independent contractor (a distinction that can have consequences in many areas of employment law). As described below, AB 1561’s changes relate to narrow types of workers, including those not involved in the public sector. But we thought the independent contractor law is important enough that its amendment deserves mention here, along with a quick refresher on the law.

To understand AB 1561, it is first necessary to discuss the background of AB 5. Passed in 2019, AB 5 codified what is known as the “ABC” test to determine if workers are employees or independent contractors. The test was established by the California Supreme Court case of Dynamex Operations West, Inc. v. Superior Court (S222732) to streamline how to determine whether a worker should be classified as an employee or independent contractor. Under the “ABC” test, a worker is considered an independent contractor only if the employer establishes:

a) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
b) that the worker performs work that is outside the usual course of the hiring entity’s business; and
c) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

AB 5 contained several exemptions, however, which allowed the previous “Borello” test to be used instead of the “ABC” test to determine a worker’s classification.

AB 1561 clarifies the scope of the exemption granted to certain narrow classes of employees. For example, the law updates the exemption for a data aggregator and a research subject who willingly engages with a data aggregator to provide individualized feedback, by formally defining the term “research subject”. The bill also removes the condition that any consideration paid for the feedback provided, if prorated to an hourly basis, is an amount equivalent to or greater than the minimum wage.

While these changes may not affect public agencies given the extensions only apply to a few narrow classifications of workers, LCW will be watching for any further changes to this independent contractor law.

We will continue to provide developments on important new legislation affecting California workers.

We are excited to announce a new video series designed especially to serve our public safety clients. Our short Public Safety Video Briefings will tackle cutting-edge issues and core principles relevant to public safety employers. We hope you find these videos useful and thought-provoking.

 

The First Amendment to the United States Constitution includes both an establishment clause and a free exercise clause.  Of these, the free exercise clause is often invoked in the employment context to challenge employer policies that, while facially neutral and generally applicable, incidentally burden religion.

In Employment Division, Department of Human Resources of Oregon v. Smith, decided in 1990, the State of Oregon denied unemployment benefits to individuals terminated from their jobs for ingestion of peyote for sacramental purposes at a ceremony for their Native American Church.  Peyote was classified as a Schedule I “controlled substance,” and Oregon state law prohibited possession of such substances unless prescribed by a medical practitioner.  The individuals challenged the denial of unemployment benefits and the law under the free exercise clause.  The United States Supreme Court found that the law was facially neutral and generally applicable and, as such, survived the individuals’ challenge because it was rationally related to a legitimate purpose (i.e., prevention of physical harm attendant to the use of Schedule I “controlled substances”).

For the past 31 years, the rational basis standard set forth in Smith has controlled the analytical framework applicable to a free exercise challenge of a law or policy that is facially neutral and generally applicable.  Of the three standards of review employed by the Supreme Court, rational basis – the standard applied by Smith — is the lowest level of scrutiny, and therefore the easiest to meet.  Intermediate and strict scrutiny become progressively more difficult to meet, with strict scrutiny being the highest level of review.

A prominent Supreme Court case decided several months ago in June 2021, however, Fulton v. City of Philadelphia, threatened to upend the decades-old precedent set forth in Smith.  Fulton considered whether a City’s Department of Human Services could stop referring foster children to a foster care agency, Catholic Social Services (“CSS”), because CSS refused to work with same-sex foster parents.  CSS argued that the Department’s decision violated CSS’s free exercise rights.

At oral argument on November 4, 2020, CSS urged the Supreme Court to overturn Smith.  CSS argued that the rational basis standard of review set forth in Smith should be replaced with strict scrutiny.  Had CSS prevailed in persuading the Court to overturn Smith and adopt a strict scrutiny standard of review, a facially neutral and generally applicable policy that incidentally burdened religion would not have survived a free exercise challenge unless it was narrowly-tailored to further a compelling governmental interest (a very high standard of review).

The Supreme Court ultimately declined CSS’s invitation to overturn Smith, holding on June 17, 2021 that the Fulton case’s underlying facts fell outside Smith’s scope.  The Court explained that Smith controls policies that are facially neutral and generally applicable, whereas the policies at issue in Fulton failed to meet either of these requirements.  In practical effect, the Court’s Fulton decision does not alter the existing free exercise analytical framework applicable to laws or policies that are both facially neutral and generally applicable.

Smith therefore survives for now.  But, for how long is an open question.

While joining the Court’s opinion, Justice Barrett penned a concurring opinion, noting: “I … see no reason to decide in this case whether Smith should be overruled, much less what should replace it.”  However, Justice Barrett added that in her view, “the textual and structural arguments against Smith are more compelling.”  Justice Kavanaugh joined in Justice Barrett’s concurring opinion.

Justice Alito also authored a lengthy concurring opinion, writing that Smith “committed a constitutional error,” and should be revisited shortly and overruled (and that the Court should have done this in Fulton).  Justices Thomas and Gorsuch joined in Justice Alito’s opinion.

While Smith remains good law at this time, three justices have openly called for it to be overruled, and two more have suggested that they find the arguments against it to be compelling.  Simply stated, it appears that a majority of five justices are ready and willing to revisit and overturn Smith if presented with a case permitting the Court to do so.  The only question is when that case will make its way to the Court.

Should the Supreme Court overturn Smith, employers could face many more constitutional challenges to policies that are facially neutral and generally applicable.  We will keep readers posted on developments.

Over the last two years, Human Resources professionals and Risk Managers have contended with a host of novel issues raised by the COVID-19 pandemic. This blog post presents a broad overview of some of the more prominent issues related to COVID-19 in an effort to provide some clarity and perspective to California employers. Liebert Cassidy Whitmore regularly writes on these and related issues. Keep an eye on future blog posts for more information.

Monitoring Updates at Every Level of Government

COVID-19-related guidance and requirements can be difficult to track. Changes occur so quickly that they often leave employers scrambling to catch up. Employers can strengthen their ability to track updates by familiarizing themselves with the main sources of guidance and requirements.

State Guidance and Requirements

For most California employers, changes at the state level will be the most important developments to monitor. Many developments will come from one of four sources: regulations from the Division of Occupational Safety and Health (also known as Cal/OSHA); Health Officer Orders and Guidance from the California Department of Public Health (“CDPH”); Executive Orders from the Governor; and new legislation from the California Legislature.

Cal/OSHA’s COVID-19 Emergency Temporary Standard (“ETS”) (8 C.C.R. § 3205, et seq.) has provided a relatively consistent set of COVID-19-related regulations. It outlines workplace requirements that apply to most public and private employers, all of which are designed to prevent the spread of COVID-19. The Occupational Safety and Health Appeals Board (“OSHSB”) has amended the Cal/OSHA ETS from time to time, in order to address changes in the pandemic. Employers can monitor the meeting schedule and agendas of the OSHSB for proposed changes to Cal/OSHA’s ETS. The OSHSB adopted the most recent amendments on December 16, 2021. Readers can find an overview of those changes here.

The COVID-19 pandemic has led to several short-term Executive Orders and legislative bills. Employers may check both authorities directly through online sources. LCW also monitors and announces significant changes through its labor and employment blog and Special Bulletins.

CDPH Health Officer Orders and guidance are also available online. Most recently, the CDPH updated its Guidance for the Use of Face Coverings, which requires all individuals to wear face coverings while indoors from December 15, 2021 to at least January 15, 2022 (subject to a few exceptions). Readers will find more information on the updated CDPH face covering requirements here. Although the CDPH called its update “guidance,” the changes are mandatory due to its June 11, 2021 Health Officer Order. The June 11 Order requires all individuals to follow CDPH’s face covering guidance, including its most recent iteration. When reading CDPH orders and guidance, employers should check the orders currently in effect to see whether they change the applicability of related guidance.

Local Guidance and Requirements

Once an employer reviews state-level guidance or requirements, it should check local authorities for further information. In many jurisdictions, this will mean checking the local health department for Health Officer Orders or COVID-19-related guidance. Local requirements can supplement – but cannot contradict – state requirements. For example, the August 5, 2021 CDPH Order requires employees in a number of healthcare fields to become vaccinated against COVID-19. Shortly afterward, the Los Angeles County Department of Public Health (“LACDPH”) issued a local Health Officer Order expanding the categories of healthcare workers who must be vaccinated. Employers within Los Angeles County must follow both the state and local orders. As a general rule, agencies should identify their local authorities and track updates that may supplement state-level requirements.

Federal Guidance and Requirements

The Centers for Disease Control and Prevention (“CDC”) has provided the most common source of federal guidance. Employers should check CDC guidance regularly, because many other authorities cite to the CDC directly or design their own guidance and requirements based on information from the CDC.

Congress has produced a number of laws to address the COVID-19 pandemic. It has dedicated an unprecedented level of funding to offset pandemic impacts. The President has also taken steps to address the pandemic. Most recently, he instructed the federal Occupational Safety and Health Administration (“OSHA”) to issue its own Emergency Temporary Standard that would require vaccination or testing for many employers nationwide. Federal OSHA’s Emergency Temporary Standard (“ETS”) recently withstood challenge in the Sixth Circuit Court of Appeals. OSHA will begin enforcing the COVID-19 ETS on January 10, 2022, further legal challenges notwithstanding. LCW monitors new and proposed federal legislation and regulations closely. Employers can refer to LCW’s Special Bulletins and newsletters for COVID-19-related federal updates.

 

Implementing Vaccine Requirements

Existing law does not prohibit employers from implementing a COVID-19 vaccine mandate. However, the process still involves certain considerations and requirements. First, employers should record the vaccine mandate in a written policy. Written policies promote even and consistent application. An effective vaccine mandate should also give employees time to comply with vaccination requirements, as well as describe methods for seeking accommodation. If employers adopt a vaccine mandate for applicants, they should make the requirement clear from the outset and should not ask an applicant’s vaccination status until they have extended a conditional offer for employment.

Employers must also engage in effects bargaining with employee representative organizations. Effects bargaining may cover issues like the timing of the requirement, how long employees have to come into compliance, how exemptions to a vaccine mandate will be evaluated by the employer, and how discipline will be applied.

While current definitions of the term “fully vaccinated” do not include taking booster shots, employers should monitor the CDC and CDPH in case definitions change and boosters are needed. If that happens, employers will need to update existing vaccine mandates to account for boosters.

Religious Accommodations to Vaccine Requirements

Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (“FEHA”) protect employees’ religious beliefs at the federal and state levels. In the past, employers received religious accommodation requests infrequently when compared to requests for accommodation based on other characteristics, such as disability. Recently, employers have received increasing numbers of religious accommodation requests in response to COVID-19 vaccine mandates.

Once the employer becomes aware that a conflict exists between an employee’s religious belief, observance, or practice and a job requirement (e.g., vaccination against COVID-19), the employer is obligated to evaluate a potential reasonable accommodation. California regulations and federal guidance describe that an accommodation is reasonable if it eliminates the conflict between the employee’s religious belief and the job requirement. Under both Title VII and the FEHA, an employer is obligated to consider all potential reasonable accommodations; although, the employer need not offer the specific accommodation that the employee requested. An employer is excused from its obligation to accommodate only if it can show that any potential accommodation would impose an undue hardship. (Note, Title VII and the FEHA define “undue hardship” differently. Employers should consider consulting legal counsel before denying a religious accommodation request on the basis that it imposes an undue hardship.)

Employers that receive religious accommodation requests should approach each request as an individualized inquiry. Employers have an obligation to engage employees in an interactive process with the goal of identifying a reasonable accommodation.

Ongoing Duty to Exclude from the Workplace

The Cal/OSHA ETS requires employers to exclude employees from the physical workplace when an employee either has COVID-19 (positive test, positive diagnosis, or ordered to isolate) or has a close contact exposure with someone who has COVID-19 (was within 6 feet of a person with COVID-19 for a cumulative 15 minutes in any 24-hour period). The Cal/OSHA ETS also requires employers to maintain the excluded employee’s compensation, seniority, and benefits while excluded.

There are several exceptions to the exclusion requirement. If an employer can show that the employee’s close contact exposure was not work-related, then it does not need to maintain compensation, seniority, or benefits while the employee is excluded. The employer also has no obligation where the employee received disability payments or was covered by workers’ compensation and received temporary disability. Separately, an employee who had a close contact exposure need not be excluded from the workplace at all if the employee meets one of several, enumerated exceptions.

Through September 30, 2021, California required employers to provide up to 80 hours of Supplemental Paid Sick Leave (“SPSL”) to employees for COVID-19-related reasons. Employers often used SPSL to compensate employees who were excluded from the workplace under the Cal/OSHA ETS. However, the expiration of SPSL had no effect on the obligation to compensate excluded employees under the Cal/OSHA ETS. The obligations of the ETS are still effective. If an employer does not have another source of compensation available to an excluded employee, it is still obligated to maintain the employee’s compensation, seniority, and benefits unless an exception from the Cal/OSHA ETS applies.

Teleworking Considerations

Many employers relied on remote work, or “telework,” arrangements to survive the initial disruption caused by the pandemic. Now that telework has proven in many circumstances to be a viable option, some employers are evaluating expanded teleworking policies (some permanent and some on a trial basis). Employers that do so should consider designing the policy so that the employer retains discretion rather than making telework a guaranteed benefit. Certain jobs are better suited for to teleworking, while others are poorly suited or incompatible to telework. Additionally, conditions or job demands may change and may affect the practicality of teleworking arrangements. Employers should also consider potential obligations to compensate employees under Labor Code section 2802, on indemnification for expenditures, which may arise from telework arrangements. This is particularly true if teleworking is required.

Conclusion

As many HR specialists and risk managers have learned, the COVID-19 pandemic presents an ongoing challenge to remain current with applicable laws. Luckily, employers need not handle the shifting challenges alone. Experienced counsel can help employers meet the various demands created by COVID-19.

Now that the holiday season is upon us, employers can anticipate that a number of employees will make travel plans to see loved ones who they may not have been able to see in-person due to the COVID-19 pandemic. For this reason, it is important for employers to be clear and transparent with their workforce about their expectations for those who engage in travel or other high-risk activities, such as large gatherings, which can increase the spread of COVID-19. It is also crucial for employers to communicate with their workforce to comply with all federal, state, and local orders regarding travel and gatherings to avoid increasing the risk of COVID-19 infection when they return to work.

The Centers for Disease Control (CDC) and California Department of Public Health (CDPH) have provided recommendations for travel during COVID-19, and these recommendations differ for vaccinated and unvaccinated individuals. Following these recommended guidelines is essential in providing a safe and healthy environment in the workplace.

Recommendations for Vaccinated Individuals

The current guidance from the CDC and the CDPH recommends individuals delay travel until they are fully vaccinated. Someone is considered fully vaccinated for COVID-19 two weeks after their second dose in a two-dose series (Pfizer-BioNTech, Moderna, or other vaccine authorized by the World Health Organization), or two weeks after receiving a single-dose vaccine (Johnson and Johnson). Fully vaccinated individuals may travel within the United States without having to test or quarantine, as long as they remain asymptomatic. However, fully vaccinated individuals should still self-monitor for COVID-19 symptoms and get tested if symptoms develop.

Recommendations for Unvaccinated Individuals

The CDC and CDPH recommend that individuals who are not fully vaccinated refrain from traveling to avoid the risk of contracting COVID-19. Should an unvaccinated individual decide to travel, the individual should arrange to take a viral test one to three days before the trip and get tested again within three to five days after returning from travel. The individual should also quarantine for seven days upon return, even if the individual tests negative for COVID-19. If the individual tests positive for COVID-19, the individual should isolate to protect others from getting infected. Individuals who choose not to get tested for COVID-19 after traveling should stay home and self-quarantine for ten days after travel. Upon returning from travel, unvaccinated individuals should also avoid being around people who are at increased risk for severe illness, self-monitor for COVID-19 symptoms and get tested if symptoms develop, and follow all federal, state, and local recommendations or requirements.

The CDC has also noted that effective December 6, 2021, all international air passengers, regardless of vaccination status, must show a negative COVID-19 test taken no more than one day before travel to the United States. Additionally, regardless of vaccination status, all individuals are required to wear a mask indoors on planes, buses, trains, and other forms of public transportation. Individuals should also follow all state and local recommendations, requirements, and safety precautions, including wearing a mask, social distancing, and washing hands frequently.

Employers should consider how they intend to address the guidance and recommendations provided in the CDC and CDPH’s travel advisories. For example, employers can consider recommending that unvaccinated employees refrain from engaging in high-risk travel and activities during the holidays, and may require them to get tested or stay home after travel. Finally, employers should continue to keep their workforce updated on their policies regarding returning to work after travel, and continue to follow the recommendations of local public health officers, the state, and the CDC regarding traveling.

We are excited to announce a new video series designed especially to serve our public safety clients. Our short Public Safety Video Briefings will tackle cutting-edge issues and core principles relevant to public safety employers. We hope you find these videos useful and thought-provoking.

 

Since the COVID-19 pandemic first began, it has had a multitude of evolving impacts on the operation of the workplace.  One impact is the increased number of requests employers are receiving from employees for reasonable accommodations.  These increases are attributed to various factors, which have evolved as the pandemic has progressed.  At the outset of the COVID-19 pandemic, many of the requests for reasonable accommodations arose from employees with medical conditions that placed them at higher risk if they contracted COVID-19.  With the development and approval of the COVID-19 vaccine and the establishment of COVID-19 vaccine requirements for employees, many of the requests for reasonable accommodations began to arise from employees with disabilities preventing them from being vaccinated or from employees with sincerely held religious beliefs, practices, or observances that conflicted with the requirement that they be vaccinated.  As California employers navigate these requests, a recent federal case provides an essential reminder for California employers.

Employers Must Engage in a Good Faith Interactive Process

In Madrigal v. Performance Transportation, LLC, the federal district court for the Northern District of California, analyzed multiple claims arising under the Fair Employment and Housing Act (FEHA) that were brought by Jorge Madrigal, who worked as a driver for Performance Transportation, LLC (PTL).  The facts are as follows:

Madrigal’s essential functions as a driver included driving and delivering food items to PTL’s customers.  When the COVID-19 pandemic began, Madrigal was on a medical leave, which his doctor extended because Madrigal had diabetes, which put him at high risk for severe illness if he contracted COVID-19.  Several months later, Madrigal provided PTL with a doctor’s note stating that he could return to work if he minimized contact with other people for six to twelve months during the COVID-19 pandemic due to his high-risk status.  Madrigal requested a reasonable accommodation to that effect, and asserted he could perform the essential functions of his position with this accommodation.

Madrigal met with three PTL employees about his request for a reasonable accommodation.  During the meeting, PTL denied Madrigal’s request to work in PTL’s warehouse, as a way to minimize contact with other persons, and ended the meeting without offering Madrigal any other reasonable accommodations.  Ten days later, PTL fired Madrigal and stated that no reasonable accommodations were available for him.

Madrigal filed a complaint against PTL, which alleged a wrongful termination claim and several FEHA claims, including claims for (1) disability discrimination, (2) failure to accommodate, (3) failure to engage in a good faith interactive process, and (4) retaliation.  PTL filed a motion to dismiss each of Madrigal’s claims.  After analyzing each of Madrigal’s claims, the court granted PTL’s motion to dismiss because Madrigal’s complaint lacked sufficient information to support his claims.  However, the court gave Madrigal the opportunity to amend his complaint to provide additional supportive information.  After Madrigal amended his complaint, the court again analyzed each of Madrigal’s claims.

In reviewing the facts, the court found that Madrigal had provided sufficient facts to support each of his claims.  Importantly, the court found that Madrigal sufficiently pled his failure to accommodate and failure to engage in an interactive process claim because the facts he provided showed he made a reasonable request for accommodation, that PTL denied the request without offering any options for accommodations, that PTL made no attempt to accommodate his disability, and that there were several different accommodations available that PTL did not explore before terminating Madrigal.  Therefore, the court did not grant PTL’s motion to dismiss, and allowed Madrigal’s complaint to proceed.

The Madrigal case provides the essential reminder of an employer’s legal obligation to engage in a “timely, good faith, interactive process” with employees in response to their requests for reasonable accommodation, and an employer’s legal obligation to make reasonable efforts to identify appropriate reasonable accommodations.  The interactive process is intended to be a flexible one that involves participation by both the employer and the individual with a disability.  In most circumstances, an employer will not fulfill their obligation to engage in the interactive process if the employer does not consider whether the employee’s requested accommodation is reasonable or offer alternate accommodations that would enable the employee to perform essential job duties with or without reasonable accommodation.  While this case is still at the pleading stage, moving forward, the employer will have to demonstrate that the employee’s requested accommodation was not reasonable and that no other reasonable accommodations were available that would enable the employee to perform his or her essential job duties, including but not limited to reassigning the employee to an alternate vacant position for which the employee is qualified.

We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

 

We are excited to announce a new video series designed especially to serve our public safety clients. Our short Public Safety Video Briefings will tackle cutting-edge issues and core principles relevant to public safety employers. We hope you find these videos useful and thought-provoking.