This Special Bulletin follows up on our February 5, 2020 Special Bulletin on COVID-19, the novel coronavirus of 2019.  The information in that Special Bulletin remains valid, including those steps individuals can take to lessen the spread of the virus.

In the past month, COVID-19 spread throughout much of the world, including to the United States.  California has now reported its first fatality associated with the virus, and Governor Newsom declared a state of emergency.  Given the scope of the virus’s spread and the fact that health professionals do not anticipate a vaccine will be available for approximately one year, public employers must make quick and important decisions concerning employees who, for example, exhibit symptoms of the virus, have traveled internationally or report having been in close contact with individuals who are infected or have traveled to areas where the virus is widespread and community transmission is sustained.

Employers have a duty to provide a safe work environment for all their employees.  However, employees who are infected, exposed or exhibit symptoms of the virus do not lose their rights.  As a result, employers are struggling with complex personnel decisions that are requiring them to balance protecting the health and safety of the workplace with the rights of individual employees.  Every situation is unique and should be discussed with legal counsel and analyzed before taking action. Moreover, employers should seek the advice of health care professionals to confirm that the directive to the employee as to length of the leave is correct, and if not, adjust the directive initially given to the employee accordingly.  Lastly, employers must recognize that employees have due process rights and should review Sections 1.G and/or 2.E below which provide our recommendations on due process requirements.

Below are some of the more common scenarios to help guide you:

1.) Employee exhibits symptoms common not only to COVID-19, but also the common cold and/or influenza

A.) Can you ask an employee to leave work and go home?

Yes, an employer can require an employee to go home if the employee is showing symptoms of a communicable illness (such as fever, coughing and/or shortness of breath).  An employer must ensure that it is acting in a non-discriminatory and non-retaliatory manner when making a decision to send an employee home. Therefore, employers should consider developing a standard by which they will act in scenarios where the employee is symptomatic (i.e., demonstrating signs of the illness).

Employers may consider the following criteria in order to develop such a standard: (1) Exhibition of symptoms associated with COVID-19; (2) Severity of such symptoms; (3) Travel to or through areas with known community transmission; and (4) Known or suspected contact with affected individuals. Employers may develop other criteria, however, such criteria should be directly related to the risk of transmission.

Please refer to Section 2.A. below for additional discussion concerning risk assessments associated with international travel.

B.) Am I required to send a sick employee home?

Under the California Occupational Safety and Health Act (“Cal-OSHA”), employers are required to maintain safe and healthy working conditions for employees.

Where there is a medical diagnosis of COVID-19, the employer must immediately send the employee home because COVID-19 constitutes a “serious health condition” and a risk to other employees. The failure of an employer to act in order to prevent the transmission of a known case of COVID-19 to other employees and would likely constitute a violation of Cal-OSHA.

In the more likely scenario where there is no medical diagnosis of COVID-19, the employer is not required to send the employee home. Here, the failure to act would likely not violate Cal-OSHA because the employer does not know the seriousness of the health condition or its transmissibility. However, the employer must use reasonable care in order to provide for the safety of other employees and in furnishing a suitable and safe place of work. As discussed above, the employer may use its discretion in determining whether to send an employee home, but should follow an objective standard in order to ensure it is not acting in an arbitrary or capricious manner.

C.) What is their pay status after being sent home?

If an employee sent home from work has a sick leave balance from which to draw, the employer may require that the employee use such leave for the duration of the isolation period.

If an employee sent home from work has no sick leave balance from which to draw or the employee exhausts their sick leave, the employer may require the employee to draw down accrued vacation time prior to the employer providing paid administrative leave to employees.

If during the isolation period, the employee’s treating physician diagnoses the employee with COVID-19, the employee will qualify for FMLA/CFRA leave because the condition constitutes a “serious health condition”. Should the employee be diagnosed with COVID-19, the employer may designate leave as FMLA/CFRA leave.

D.) What if the employee has no leave balances?

If an employee sent home from work has no paid leave balance from which to draw, the employer should place the employee on paid administrative leave.  The employer may not place the employee on unpaid leave of absence due to illness without impairing the employee’s property interest in employment.  Keeping the employee in the workplace while the employee receives due process prior to the leave would put other employees at risk.

E.) Does it matter if the employee insists it is just a cold or allergies?

No, it should not. An employer will be unable to distinguish symptoms associated with allergic reactions from those associated with communicable conditions, such as cold, influenza, or COVID-19.  Therefore, in order to ensure safe and healthy working conditions for all employees, an employer should act in a consistent manner and apply the same standard to all employees who are symptomatic.

If an employee provides a certification from their treating physician that the symptoms are non-communicable, the employer may reasonably rely on such assurances and allow the employee to return to work. However, without such certification, the employer should require that the employee remain at home until they are asymptomatic (i.e., showing no signs of fever, coughing or shortness of breath).

F.) If sent home, when can they come back to work?

A symptomatic employee sent home from work should contact a medical professional for further advice. The employee should engage in self-observation while away from work.

The employer should instruct the employee not to return to work unless the employee is asymptomatic. The employer may require that the employee provide a note from the employee’s treating physician clearing the employee to return to work.  Furthermore, the employer may require that the employee undergo a medical examination at the employer’s expense for the purpose of determining the employee’s “fitness for duty” prior to their return to work.

The employer should immediately send home from work any employee who returns to work after an illness and still exhibits symptoms of a communicable disease. If an employer has concerns about an employee’s ability to perform their job, even after providing a note from their treating physician, the employer may request that the employee undergo a medical examination at the employer’s expense for the purpose of determining the employee’s “fitness for duty.”  If the employee was diagnosed with COVID-19, and the employer designated the leave as FMLA/CFRA leave, the employer must accept the physician’s certification that the employee can return to work.

G.) Due process rights

Public employees who are sent home are deprived of their property right to employment and are entitled to due process, even where they receive pay during their leave by drawing down leave balances.  We suggest that public employers provide required due process as follows:

1.) Employees who are sent home who are either (a) at-will with no property rights in employment; or (b) put on a fully paid leave not requiring them to draw down leave balances

           No due process required.

2.) Employees who have property rights in their employment and must use leave balances for all or part of their leave;

a.) Given the exigent circumstances presented by COVID-19 in the workplace, no pre-deprivation due process is required.  (However, the employer should review the agency’s rules, MOUs, etc., regarding any greater due process requirements under these  circumstances);

b.) Post-deprivation due process is required.  The level of due process that is required depends on the circumstances.  Here, we believe a post-deprivation Skelly meeting should be sufficient if the issue is the drawdown of leave balances.  An employee put on a fully unpaid leave (e.g., no leave balances available and the employer does not provide paid leave) should be given a full evidentiary hearing.  (Note-we are not recommending any employee be put on a fully unpaid leave).

The employer can choose to provide full evidentiary hearings to all employees that are placed on leave and have to draw down leave balances who are entitled to due process.  The employer should check the agency’s rules, MOUs, etc., to determine if full evidentiary hearings or additional due process is required under the circumstances.  Also, to minimize potential due process claims and avoid the time and expense of providing due process, the employer can choose the safer (but more expensive) option of putting all employees on fully paid leave.

2.) Employee exhibits no symptoms but you learn the employee has traveled to an area where there is widespread community transmission of COVID-19 or been in close contact with someone who has tested positive for COVID-19:

A.) Can you ask the employee to leave work and go home?

Employers have a duty to maintain safe and healthy working conditions for employees, and must use reasonable care to provide for the safety of his employees and in furnishing a suitable and safe place of work. If the employer has reason to believe that the employee was exposed to COVID-19 and poses a threat to other employees, the employer may place the employee on sick leave in order for the employee to seek a diagnosis.

As with symptomatic employees, employers should consider developing a standard by which they will objectively assess the risk of asymptomatic employees whose travel and/or interactions placed them at increased risk of exposure to COVID-19.

For individuals returning from international travel, the CDC publishes a risk assessment by country (https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html) which employers may use to develop a risk assessment standard based on such travel. Current CDC advice provides that COVID-19 symptoms may appear 2-14 days after exposure. Therefore, an employer could provide that any employee who has traveled to or through a country identified by the CDC as high risk must remain at home and away from work for no less than 14 days after such travel unless a health professional advises the employer that the employee may return earlier.

For individuals who have known or suspected exposure to an individual who has tested positive for COVID-19, the employer may require a comparable self-quarantine away from work for 14 days after such potential exposure, unless a health professional advises the employer that the employee may return earlier.

B.) What is their pay status after being sent home?

Employers may require that an employee use sick leave during any self-quarantine. If the employee exhausts their sick leave, the employer may require that the employee draw down any accrued vacation time prior to placement on paid administrative leave.

Asymptomatic employees should remain in self-quarantine away from work for a period of not less than 14 days after the potential exposure.

C.) What if the employee has no leave balances?

If an employee sent home from work has no paid leave balance from which to draw, the employer should place the employee on paid administrative leave.   The employee retains a property interest in their job, which the employer may not impair by placing the employee on an unpaid leave of absence due to illness or prospective illness, without providing due process.

D.) If sent home, when can they come back to work?

Current CDC advice provides that COVID-19 symptoms may appear 2-14 days after exposure.  Therefore, employees should remain on leave for a period of not less than 14 days after the potential exposure unless a health professional advises the employer that the employee may return earlier.   If the employee has not exhibited any symptoms associated with COVID-14 during the self-quarantine, the employer may allow the employee to return to work.

E.) Due process rights

Public employees who are sent home are deprived of their property right to employment and are entitled to due process, even where they receive pay during their leave by drawing down leave balances.  We suggest that public employers provide required due process as follows:

1.) Employees who are sent home who are either (a) at-will with no property rights in employment; or (b) put on a fully paid leave not requiring them to draw down leave balances;

          No due process required.

2.) Employees who have property rights in their employment and must use leave balances for all or part of their leave;

a.) Given the exigent circumstances presented by COVID-19 in the workplace, no pre-deprivation due process is required.  (However, the employer should review the agency’s rules, MOUs, etc., regarding any greater due process requirements under these circumstances);

b.) Post-deprivation due process is required.  The level of due process that is required depends on the circumstances.  Here, we believe a post-deprivation Skelly meeting should be sufficient if the issue is the drawdown of leave balances.  An employee put on a fully unpaid leave (e.g., no leave balances available and the employer does not provide paid leave) should be given a full evidentiary hearing.  (Note-we are not recommending any employee be put on a fully unpaid leave).

The employer can choose to provide full evidentiary hearings to all employees that are placed on leave and have to draw down leave balances who are entitled to due process.  The employer should check the agency’s rules, MOUs, etc., to determine if full evidentiary hearings or additional due process is required under the circumstances.  Also, to minimize potential due process claims and avoid the time and expense of providing due process, the employer can choose the safer (but more expensive) option of putting all employees on fully paid leave.

3.) Employees who refuse to work with someone they suspect is infected, but who exhibits no symptoms  and for whom there is no reason to believe the employee is infected; and employees who refuse to work somewhere that they suspect will cause them to become infected:

A.) Can these employees be disciplined for failing to return to work?

Employers must use reasonable care to provide for the safety of employees and in furnishing a suitable and safe place of work.  This includes providing employees safety devices that are reasonably necessary in order to protect their health and safety.

Therefore, an employer that has not provided or agreed to provide safety devices that are reasonably necessary to protect their employees’ health and safety may not discipline an employee who refuses to return to work until such time as the employer can ensure their health and safety. An employer may treat an employee’s refusal to return to work despite the employer’s reasonable steps to ensure safe and healthy working condition as an unexcused absence or possibly insubordination.

Furthermore, all public employees are declared to be disaster service workers subject to such disaster service activities as may be assigned to them by superiors following a declaration of emergency.  Failure to follow a lawful emergency assignment could be grounds for discipline for insubordination.

B.) Does the employer have any obligation to test the employee suspected of being infected, and/or remove that employee from the workplace?

Employers have no obligation to subject an employee suspected by another employee of being infected to medical tests or removal from the workplace.  As discussed above, an employer must ensure that it is acting in a non-discriminatory and non-retaliatory manner and should develop a standard by which it will assess the risk of transmission by individual employees. Absent an individual employee exhibiting symptoms associated with COVID-19 or having traveled to areas or interacted with persons that would place them at increased risk of exposure to COVID-19, the employer should not arbitrarily subject an employee suspected by another employee of being infected to medical tests or removal from the workplace.

C.) Does it matter if the employee refusing to work is in a high-risk group, (such as someone with a compromised immune system)?

According to the CDC, preliminary data suggests that older adults and persons with underlying health conditions or compromised immune systems might be at greater risk for severe illness from the virus.

While older adults are not strictly protected under either the Americans with Disabilities Act (“ADA”) or the Fair Employment and Housing Act (“FEHA”), under FEHA employees with known pre-existing conditions, including underlying health conditions or compromised immune systems, may request a reasonable accommodation that will allow them to telecommute as opposed to returning to work. Employers must engage in the interactive process with employees who request reasonable accommodations and must accommodate the request if doing so would not create an undue hardship for the employer’s operation.

4.) Do the actions described in this bulletin require meet and confer?

Sending employees home, requiring the use of leave, and creating the list of factors to consider before doing so, etc., may trigger meet and confer obligations. For agencies subject to the Meyers-Milias-Brown Act (“MMBA”) (Government Code section 3500, et seq.), Section 3504.5, subdivision (b) provides an emergency exception. It allows an employer to take action so long as the employer provides notice of the change to affected employee associations and provides those associations the opportunity to meet and confer at the earliest practicable time.

Given the exigency related to protecting an employer’s workforce, we recommend that, if an employer decides to take action on a negotiable subject, the employer immediately inform the affected employee associations.  The employer should provide these associations an opportunity to meet and confer before making change if possible, or, if not, as soon thereafter as is practicable.

On the afternoon of May 31, 2019, a disgruntled public employee fatally shot twelve people and wounded four others in a mass shooting at a municipal building in Virginia Beach, Virginia. Eleven were city employees, and one was a contractor in the building there to obtain a permit. The building housed the city’s public works, utilities, and planning departments in an open-government facility with no additional security to enter but security passes required for accessing employee areas and conference rooms.

Violence in the workplace is not a new phenomenon. The most recent data gathered by the U.S. Bureau of Justice on workplace violence specific to public employees found that from 2002 to 2011, about 96 percent of workplace violence against government workers was against state, county, and local employees. Public employers and employees in particular are uniquely exposed to workplace violence.

What is Workplace Violence?

The Occupational Safety and Health Administration (OSHA) defines workplace violence as any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the worksite. It ranges from threats and verbal abuse to physical assaults and even homicide. Workplace violence may affect and involve employees, clients, consumers, and visitors.

California’s Workplace Violence Prevention Standards

Cal/OSHA is the state program responsible for protecting the health and safety of workers. Cal/OSHA requires employers to have an Injury Illness Prevention Program that includes procedures for identifying, evaluating, and correcting workplace hazards. Additionally, other laws reflect an employee’s right to a safe workplace, including Labor Code section 6400 which requires that “[e]very employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.” Additionally, Labor Code section 6401 requires employers in general terms to do what is “reasonably necessary to protect the life, safety, and health of employees.”

What Can Employers Do To Help Prevent Workplace Violence?

Employers can take the following steps to help prevent workplace violence and to improve the workplace violence prevention plan they have in place:

  • Applicant screening: Most public agencies utilize some type of applicant screening process. During the pre-employment stages, applications and interviews are some of the early and effective methods for learning about an applicant, as some responses may raise red flags. At the interview stage, employers should look for gaps in work history that could indicate dishonesty or prior employment problems. To the extent possible, employers should ask applicants fully to explain any prior misconduct and/or imposed disciplined. In doing so, the employer must be careful to avoid making improper pre-employment inquiries that violate an employee’s right to privacy or other laws. Employers may conduct a criminal history check after offering a job. However, with the exception of certain positions, the law requires an individualized assessment about the applicant’s conviction history (such as considering the nature and gravity of the offense, the time that has passed since the conviction, and the nature of the job the applicant is seeking) prior to revoking an offer due to the applicant’s criminal history.
  • Written Policies: Employers should create, maintain, and evaluate workplace violence policies and procedures, and determine what, if any, additional policies and procedures need to be updated or addressed. Employers should also collect and review reports of any prior workplace violence events or threats of violence.
  • Training and Performance Evaluations: Employers should train supervisors, managers, and employees on risk factors for workplace violence and ways to prevent such incidents. Employers should also conduct regular performance evaluations in order to identify and address employee performance and dissatisfaction early on and provide guidance on improvement, since warning signs of a potentially violent situations may be found in job performance evaluations.
  • Stay Informed: The California Legislature recently passed legislation aimed at preventing workplace violence. For example, AB 61, signed by Governor Newsom on October 11, 2019 and effective September 1, 2020, expands existing law to allow public employers to file a gun violence restraining order against employees who show signs of a significant danger of harm by firearm.

LCW provides trainings in workplace violence prevention. For more information about trainings and policy reviews, please click here or contact Cynthia Weldon, the Director of Marketing and Training Department at 310.981.2000.

Let’s set the scene.  It’s February of 2020, and an employee comes to you, a supervisor, to “vent” about being the target of off-color comments and jokes due to the employee’s national origin.  The employee does not use the term “harassment.”  Moreover, the employee tells you that they are just talking it out, and they don’t want to see anyone get into trouble.  They do not request that the matter be investigated.

Should you investigate even if the employee does not use the term “harassment”?  If you want to protect your employer, then the answer is “yes!”  Should you investigate even if the employee doesn’t request that the matter be investigated?  The answer is also “yes!”

You should investigate because the employer is now on notice of possible harassment due to a protected class and, under state and federal law, obligated to take action to prevent and/or correct it.  A prompt and thorough investigation can go a long way toward ensuring that the employer has complied with its legal obligations.  In fact, it could even convince the employee not to initiate litigation or, if a lawsuit is filed, it will be the cornerstone of the employer’s defense.

To illustrate this, let’s return to our scene, but fast-forward to December of 2022.  The employee is not selected for a promotion.  The following month, in January of 2023, the employee files a harassment complaint with the DFEH.  The employee alleges that they complained to you about harassment in February of 2020, but that the employer failed to investigate and take remedial action.  A year later, in January of 2024, the employee receives a right-to-sue notice.  The employee then files suit for harassment and failure to take action to correct and/or prevent harassment.

The employee’s lawsuit is filed four years after the employee came to you to “vent” about harassment.  Is the employee’s lawsuit too late?  The answer is no.

On October 10, 2019, Governor Gavin Newsom signed Assembly Bill 9 (“AB 9”).  Effective as of January 1, 2020, AB 9 amended sections 12960 and 12965 of the Government Code, increasing the statute of limitations to file a discrimination, harassment and/or retaliation complaint with the Department of Fair Employment and Housing (“DFEH”) from one to three years.  If no right-to-sue notice is requested, the DFEH can issue such notice up to one year after the filing of the complaint.  In practical effect, a lawsuit may be filed against an employer four years from the date of the alleged unlawful practice.

This employee’s lawsuit in the scenario above could have been avoided by prompt and thorough investigation.  Such an investigation would establish that the employer takes allegations of harassment seriously, and that prompt corrective action will be taken.  Moreover, such an investigation serves to preserve a record of what was said and done at the time of the events.  That record can be used in litigation long after memories have faded and witnesses have moved on and, in many cases, away.

The employer should never be lulled into inaction by an employee’s assertion that they are just “venting” (or even by the employee’s failure to use the term “harassment” while “venting”).  Once the employer is on notice of possible harassment based on an individual’s protected class, the employer must take action to prevent and/or correct it.  A prompt and thorough investigation not only ensures that the employer is complying with state and federal law, but may also help avoid a lawsuit.

RomanceThis blog post originally appeared in February 2016 and was revised in February 2020.

With Valentine’s Day upon us, cupid may have left a few arrows in the workplace.  People spend a lot of time with coworkers, including time at work and at social events, so it is not unheard of for workplace relationships to evolve into romantic relationships.  A U.S. workforce study found that 36 percent of workers have dated a coworker at some point in their career.  When romantic relationships enter the workplace, the relationship is no longer just between two people, but can affect coworkers, supervisors, and the public.  While the idea of having an office sweetheart may boost some employees’ morale, romantic relationships in the workplace can create employee dissension and legal liability for employers.

Relationships Between Supervisors and Subordinates

While any relationship between employees may cause problems in the workplace, the level of exposure to employers increases when a romantic relationship develops between a supervisor and subordinate.  While consensual romantic relationships between two coworkers do not typically create a hostile work environment, issues may arise when coworkers break up.  Indeed, relationships that begin as consensual between supervisors and subordinates may later form the basis of a lawsuit.  When a supervisor and subordinate break up, they are still required to work together professionally despite their past dating history.

Such relationships can have actual and resonating effects on the workplace because of the power inequalities in the positions and the insecurity the relationship may create for other employees, especially those who report to the supervisor.  In one case, the Eleventh Circuit found that a public employer’s interest in discouraging intimate association between supervisors and subordinates was so critical to the effective functioning of the employer that it outweighed the employee’s interest in the relationship.  (Starling v. County Board of Commissioners.)

More importantly, an employer is strictly liable for supervisory employees’ sexual harassment regardless of whether the employer knew of conduct.  (Kelly-Zurian v. Wohl Shoe Co.)  It is not easy for an employer to know when a consensual dating relationship between two employees is no longer consensual.  For this reason, it is best to develop policies requiring employees to immediately disclose romantic workplace relationships to a higher-level supervisor or manager.

Sexual Harassment

If employers do not take swift, proper action upon discovering a romantic workplace relationship, they may be faced with claims of sexual harassment.  Under the Fair Employment and Housing Act (“FEHA”), it is unlawful for an employer to subject an employee to different terms and conditions of employment because of the employee’s sex.  There are two types of sexual harassment.  The first type is “Quid pro quo” harassment, which occurs when submission to sexual conduct is explicitly or implicitly made a condition of a job, a job benefit, or the absence of a job detriment.  The second type is a “hostile work environment,” in which an individual must show: (1) he or she was subjected to conduct of a harassing nature because of his or her sex; (2) the conduct was both subjectively and objectively unwelcome or offensive; and (3) the conduct was sufficiently severe or pervasive to alter working conditions or to create an intimidating, hostile, or offensive working environment.  For the “severe or pervasive” standard, one single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment.

In one example of a workplace relationship forming the basis of a sexual harassment claim, Allan Samson hired Joyce Chan as his legal secretary and the two dated for two years.  Chan alleged that she continued the relationship out of fear of losing her job but eventually ended the relationship when she realized that Samson’s behavior constituted sexual harassment.  She alleged that soon thereafter, Samson retaliated against her by changing the terms of her employment.  Chan informed Samson that she was planning on filing formal charges of sexual harassment and retaliation with the Department of Fair Employment and Housing (“DEFH”) and state court.  Samson ended up settling with Chan for $50,000 and a favorable letter of recommendation.  (Samson v. Allstate Insurance Company.)

Sexual Favoritism

Employers must also be aware of any sexual favoritism that may result from romantic relationships.  Sexual favoritism is favoritism shown by supervisors to employees who are the supervisors’ sexual partners.  (Miller v. Department of Corrections.)  Third party employees who are not involved in the relationship may be motivated to bring claims of sexual favoritism if they see a coworker receive job benefits as a result of being intimately involved with a supervisor.  The California Supreme Court has recognized that an employee may establish a sexual harassment claim under the FEHA by demonstrating widespread sexual favoritism that is severe or pervasive enough to alter an employee’s working conditions and create a hostile work environment.  (Miller)

Anti-Nepotism and Anti-Fraternization Policies

There are several steps employers can take to set standards of conduct for workplace relationships and manage office romances.  Federal and state laws, as well as the California Constitution, generally prohibit employers from making employment decisions based on marital status.  Anti-nepotism and anti-fraternization policies, however, are permissible.  If a personal relationship in the workplace would affect supervision, efficiency, security, or morale, an employer would have a strong argument for implementing and enforcing anti-nepotism and anti-fraternization policies.

These policies should require employees to immediately disclose romantic workplace relationships to a supervisor or manager.  By requiring disclosure, employers can red flag romantic relationships between supervisors and subordinates or relationships that create a conflict of interest.  The California Court of Appeal has upheld policies that require a supervisor to bring a consensual intimate relationship with an employee to management’s attention for appropriate action.  (See Barbee v. Household Automotive Finance Corp.)

Once an employer learns of a romantic workplace relationship, the employer should immediately explore all options and take non-discriminatory corrective action.  Pursuant to a policy, employers can reassign or transfer one or both of the employees.  Employers can seek the affected employees’ preferences for reassignment or use objective standards such as personnel rules, memorandum of understanding policies, or seniority to determine which employee to reassign and where to reassign the employee(s).  If an employee violates the anti-nepotism or anti-fraternization policy despite notice of the policy, an employer may choose to take disciplinary action against the employee.  This may be the right decision if an employee has a pattern or practice of engaging in office relationships that disrupt the workplace.

Employers should uniformly enforce anti-nepotism and anti-fraternization policies.  They should not ignore some relationships while taking action against other relationships.  Employers should regularly circulate policies with their personnel rules or memorandum of understanding.  Employers with represented employees should also remember that they should provide notice of the anti-nepotism or anti-fraternization policies to employee organizations and follow the meet and confer process.

Love Contracts

In the past, employers would occasionally put “love contracts” into place when they discovered a romantic relationship.  A “love contract” is an agreement that affirms that the relationship is consensual and that the employees’ understand the employer’s anti-nepotism, anti-fraternization, harassment, and retaliation policies.  Love contracts are less common today because employers rely on policies to address and manage romantic workplace relationships without having to resort to contracts.

Employee Privacy

Regardless of any policy about dating in the workplace, an employer ultimately may not be able to prevent two employees from engaging in a personal relationship outside of the workplace.  Also, employees can in some circumstances make arguments that they have an expectation of privacy in their personal off-duty relationships.

Mitigating Risk of Issues with Dating in the Workplace

While employers may not be able to completely prevent office romances, an employer can establish policies that require disclosure of romantic relationships and give the employer the discretion to take appropriate corrective action.  Employers are also required to implement and enforce harassment and retaliation policies that are up to date with current law.  Furthermore, sexual harassment training is a key requirement.  Employers with five or more employees are required to provide two hours of sexual harassment training to supervisory employees, and at least one hour of sexual harassment training to non-supervisory employees.  These trainings provide an opportunity to inform employees about the employer’s policies on harassment and retaliation and any policies on anti-nepotism and anti-fraternization.  By taking these steps, employers reduce the odds that they will be hit by a lawsuit if an office romance goes awry.

With Valentine’s Day upon us, cupid may have left a few arrows in the workplace.  People spend a lot of time with coworkers, including time at work and at social events, so it is not unheard of for workplace relationships to evolve into romantic relationships.  A U.S. workforce study found that 36 percent of workers have dated a coworker at some point in their career.  When romantic relationships enter the workplace, the relationship is no longer just between two people, but can affect coworkers, supervisors, and the public.  While the idea of having an office sweetheart may boost some employees’ morale, romantic relationships in the workplace can create employee dissension and legal liability for employers. To read more about dating in the workplace see the original blog post here.

With the legalization and decriminalization of hemp in 2018 by the 2018 Farm Bill, we are seeing an explosion of CBD products in markets all across the U.S. You can buy CBD lotions, oils, tinctures, vapes, and even CBD-laced foods. (Although there is a bill in place to ban CBD-laced food and beverages.) CBD (short for cannabidiol) is one of many cannabinoids, or molecules produced by the cannabis plant. Unlike its infamous sibling THC (or tetrahydrocannabinol), CBD does not have psychoactive effects that cause the “high” associated with cannabis. Advertised as wellness products, CBD products claim to naturally cure anxiety, pain, depression, high blood pressure, spasms, acne, and schizophrenia, and even stave off diabetes. (https://www.healthline.com/nutrition/cbd-oil-benefits#section6.) (This article makes no comment on the validity of these health claims.) Given that these products are sold everywhere from CVS to your local supermarket, they are presumably legal, but are all CBD products legal? And can they affect the results of a drug test? It turns out the answer isn’t a simple “yes” or “no.”

Are All CBD Products Legal?

CBD products are legal to the extent they are made from hemp and contain less than 0.3% THC. Hemp and marijuana are the same cannabis plant except that hemp has a THC concentration of less than 0.3%. (21 U.S.C. § 802(16).)  Unlike marijuana, which is Schedule I controlled substance regulated by the Drug Enforcement Agency, hemp is not a controlled substance at all. (21 U.S.C. § 812 under Schedule I (c)(17).) Hemp is an agricultural product regulated by federal and state departments of agriculture. Thus hemp-derived products (such as CBD products) are similarly “legal” (that is, they are not illicit drugs). However, both CBD and THC occur naturally in all cannabis plants, and it is impossible to predict the THC levels in a given plant.

This brings us to the main issue with trusting CBD products: lack of enforcement. Researchers tested the accuracy of CBD product labels and found that a significant percentage of tested products contained over the legal amount of THC and most of the labels under- or over-represent the amount of CBD.  (One study published in the Journal of American Medical Association found THC in 18 of 84 products with an average concentration of 0.45%. In a different study, researchers at the University of Arkansas found that in 3 of 25 products contained over 0.3% THC and 4 others contained synthetic cannabinoids.) While the U.S. Food and Drug Administration (“FDA”) does some enforcement (see: list of warning letters issued by FDA), its ability to crack down on this burgeoning market is limited. In California, the responsibility of enforcing this 0.3% THC limit in CBD products falls on local authorities.

Trusting what’s on a label always involves risk, but some companies are more transparent than others. For example, some manufacturers provide batch numbers for each of their products that allow you to look up CBD and THC testing results for your specific product.

Will CBD show up on a drug test?

Drug tests, such as those used by employers for screening safety-sensitive employees, look for the presence of THC to determine whether a subject has used marijuana. CBD products can result in a positive drug test if the product is tainted or contains more than the advertised amount of THC. It can also happen even if an employee has only used CBD products with less than 0.3% (or even 0.01%) THC. THC accumulates in the body and is detectable for up to 30 days, so with repeated use, consuming even trace amounts over time may result in a positive drug test. In a study by a team at John Hopkins Medicine, 2 of 6 participants who used CBD products with 0.39% THC tested positive. (https://www.sciencedaily.com/releases/2019/11/191104141650.htm)

Even more troubling, in 2012 researchers found that a common testing method used in urine tests could not differentiate between CBD and THC. This can result in a false positive for marijuana even though an employee has consumed only pure, legal CBD products. (See article by the New York Times: https://www.nytimes.com/2019/10/15/science/cbd-thc-cannabis-cannabidiol.html.) Once a drug test comes back positive, employees (and employers) may have little recourse for challenging this result outside of the courts. Basically, no matter how careful you are, using CBD products comes with a risk for drug-tested employees.

As an employer, what can you do?

-Educate your employees as to the risks of using CBD products.

-Talk to the vendor or laboratory that conducts drug tests and ask whether the specific testing method they use can differentiate between CBD and THC and whether they have procedures in place for identifying false positives caused by CBD.

For more information about what the FDA is doing to regulate CBD products, visit: https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd

 

In this Special Bulletin, we address how to respond to potential employment issues arising from the 2019 Novel Coronavirus (“Coronavirus”) and we recommend steps to limit the impact of the Coronavirus in the workplace.

The Public Health Response and Current Situation

As of January 27, 2020, the Centers for Disease Control and Prevention (“CDC”) has issued a Level 3 health travel notice (the highest threat level) recommending that people avoid all nonessential travel to China.

On January 30, 2020, the World Health Organization (“WHO”) declared the Coronavirus outbreak a “public health emergency of international concern.” After WHO’s global health emergency declaration, the U.S Department of State raised its China travel advisory to Level 4: “Do Not Travel.”

On January 31, 2020, the U.S. Department of Health and Human Services declared a public health emergency in the United States and implemented the following:

  • Any U.S. citizen returning to the U.S. who has been in the Hubei province of mainland China in the previous 14 days will be subject to up to 14 days of mandatory quarantine.
  • Any U.S. citizen returning to the U.S. who has been in any other part of mainland China within the previous 14 days will undergo proactive entry health screening at a select number of ports of entry and up to 14 days of monitored self-quarantine to ensure they have not contracted the virus and do not pose a public health risk.

Also on January 31, the U.S. President signed a presidential proclamation, suspending the entry into the United States of foreign nationals, other than immediate family of U.S. citizens and permanent residents, who have traveled in China within the last 14 days.

What is the Coronavirus?

The Coronavirus is a respiratory virus first identified in Wuhan, Hubei province of China. This virus most likely originally emerged from an animal source but now seems to be spreading person-to-person.  For confirmed Coronavirus infections, reported illnesses have ranged from people with little to no symptoms to people being severely ill and dying. Symptoms can include fever, cough, and shortness of breath. The CDC believes at this time that symptoms of the Coronavirus may appear in as few as two or as long as fourteen days after exposure.

How does the Coronavirus spread?

According to the CDC, little is known about how the Coronavirus spreads. Most often, spread from person-to-person happens from close contacts (about six feet). Person-to-person spread occurs mainly via respiratory droplets produced when an infected person coughs or sneezes, similar to how influenza and other respiratory pathogens spread. These droplets can land in the mouths or noses of people who are nearby or can be inhaled into the lungs. It is currently unclear if a person can contract Coronavirus by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes.

Typically, as with most respiratory viruses, people are thought to be most contagious when they are most symptomatic (the sickest). With the 2019 Novel Coronavirus, however, there have been reports of spread from an infected patient who had no symptoms to a close contact. There is much more to learn about the transmissibility, severity, and other features associated with the Coronavirus and investigations are ongoing.

What Actions can Employers take to Prevent the Transmission of the Coronavirus?

  • As discussed above, the United States is imposing a 14-day mandatory quarantine on individuals who have traveled to Hubei province, and 14 days of monitored self-quarantine for individuals returning from other parts of mainland China. The director of the CDC stated that people in mandatory self-quarantine “will be monitored by the local health departments in a self-monitoring situation in their home.”
  • Currently, there is no Coronavirus vaccine available, so the CDC is recommending standard precautions, such as: washing hands with soap and water for at least 20 seconds; avoiding close contact with sick people; staying at home when you are sick; and disinfecting frequently touched objects and surfaces.
  • Employers should prepare for the possibility that some employees may have to stay home in the event of school closures or childcare concerns.
  • Employers should ensure that common areas in the workplace, including computer keyboards used by more than one person, are kept clean and disinfected.
  • Employers should inform employees that information regarding medical conditions is kept strictly confidential and they will not suffer retaliation for reporting that they are ill or if they need to take a family or medical leave.

Issues that Employers Should Consider Regarding the Coronavirus

  • Employers and employees should not prejudice employees of Asian descent because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have the Coronavirus.
  • Follow federal, state and local laws, as well as any agency policies and/or collective bargaining agreements provisions, covering family and medical leave entitlements, and confidentiality require­ments.
  • Review all applicable guidance from the Occupational Safety and Health Administration (“OSHA”), CDC and WHO. Although OSHA has not announced specific standards covering the Coronavirus, it has issued a notice indicating that employers should be aware of general standards to which they may be subject under OSHA. The Notice is available at: https://www.osha.gov/SLTC/novel_coronavirus/standards.html.
  • Avoid asking employees questions about any known or suspected medical condition or med­ical history. In 2009, the Equal Employment Opportunity Commission (“EEOC”) released a notice titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” which provides guidance. The Notice is available at: https://www.eeoc.gov/facts/pandemic_flu.html
  • If applicable, refer to your agency’s pandemic or health protection policy for further guidance.

Information about the Coronavirus is constantly developing. Liebert Cassidy Whitmore will continue to monitor employment issues related to the Coronavirus and will issue ongoing bulletins. Employers should also continue to refer to the CDC, WHO, and OSHA websites for the latest information.

The California Supreme Court will soon schedule oral argument in controversial cases involving legislative pension reform impacting the pension benefits of state and local government employees. By the close of 2020, the Supreme Court will issue a decision that may very well strike at the heart of the so-called “California Rule.”

For nearly 60 years, since the California Supreme Court issued its decision in Allen v. City of Long Beach in 1955, the “California Rule” remained a mainstay of California common law. The California Rule is the general notion that a public employee is vested in the pension benefit promised at the start of employment such that those benefits cannot be reduced even for prospective service except under exceptionally limited circumstances. To be legally permissible under the California Rule, the modification of a pension benefit “must bear some material relation to the theory of a pension system and its successful operation” and any modification that results in disadvantages to employees must be accompanied by comparable new advantages.

Among the provisions enacted with the Public Employee Pension Reform Act of 2013 (PEPRA) were changes to the definitions of “compensation earnable” or “pensionable compensation.” These two terms refer to the items of employee compensation that may be included in the calculation of the employee’s ultimate pension benefit. For example, compensation for special assignments, education, or performance of extra duties. The PEPRA revised a statute under the County Employees Retirement Law of 1937 (CERL) such that particular items of compensation that were formerly included in “compensation earnable,” are now expressly excluded for employees hired prior to PEPRA’s effective date (“Legacy Members”). Soon after, Legacy Members challenged what they believed to be PEPRA’s violation of the California Rule.

The first of these cases decided by a California Court of Appeal was Marin Assn. of Public Employees v. Marin County Employees’ Retirement Assn. in 2016. In Marin, the court held that public pension system members are not entitled to an immutable, unchanging pension benefit for the entirety of employment, but are entitled only to a “reasonable” pension. The Marin court further held that detrimental pension modifications should, rather than must, be accompanied by comparable new advantages. The Marin court focused heavily on the “dire financial predictions necessitating urgent and fundamental changes to improve the solvency of various pension systems” in concluding that PEPRA’s modifications to the definition of compensation earnable for Legacy Members was “reasonable” and therefore, did not impair constitutionally protected vested rights. The Marin Association of Public Employees appealed the decision. The California Supreme Court granted review on November 22, 2016, but deferred action in the matter pending the decision in the next case, Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn.

Decided in 2018, the Alameda court declined to follow the decision in Marin, issuing a decision closer in line with the California Rule. The court held that the law requires an individualized balancing test to determine if modifications to pension benefits are reasonable and lawful. The Alameda court explained that when detrimental modifications are made to a public employee’s pension benefits, and no corresponding new advantages are provided, the application of the detrimental changes can only be justified by compelling evidence establishing that the required changes bear some material relation to the theory of a pension system and its successful operation. The Alameda court instructed that the individualized analysis requires focusing on factors such as the impacts of the detrimental changes on the Legacy Members and whether exempting the Legacy Members from the detrimental changes would make it difficult for the particular pension system to meet its pension obligations. The Alameda decision was appealed and the California Supreme Court granted review on March 28, 2018.

Marin and Alameda leave us with somewhat conflicting legal frameworks for analyzing if, when, and under what circumstances a public employer or the legislature may modify the pension benefits of public employees after they have begun employment. On January 10, 2020, the Supreme Court issued notice for the scheduling of oral argument. This means a final decision of the Supreme Court may come before the end of the year that may provide an answer as to the existence and fate of the California Rule.

 

Marin Assn. of Public Employees v. Marin County Employees’ Retirement Assn. (2016) 2 Cal.App.5th 674 review granted, Marin Association of Public Employees v. Marin County Employees’ Retirement Association (State of California) (Cal. 2016) 210 Cal.Rptr.3d 15.

Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn. (2018) 19 Cal.App.5th 61, as modified (Feb. 5, 2018), review granted Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Assn. (Cal. 2018) 230 Cal.Rptr.3d 681.

On January 7, 2020, Assemblyman Jordan Cunningham (R-San Luis Obispo) reintroduced Assembly Bill 1599, which proposes to expand upon Senate Bill 1421 by making more records relating to officer-involved sexual assault available to the public.  SB 1421 changed the status quo by amending Government Code section 832.7 to generally allow disclosure of records related to certain categories of officer misconduct:  (1) officer-involved shootings; (2) certain uses of force; (3) sustained findings of sexual assault involving a member of the public; and (4) sustained findings of certain types of dishonesty.  We described this legislation in detail in a previous Special Bulletin.

Despite SB 1421’s attempt to streamline disclosure of such records, language contained within Penal Code section 832.8(b) has created some complexities with regard to how public agencies handle California Public Records Act (PRA”) requests.  Specifically, Penal Code section 832.8(b) defines “sustained” as “a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code that the actions of the peace officer or custodial officer were found to violate law or department policy.”

Compliance with a PRA request for records relating to sustained findings of sexual assault seems straightforward where imposed discipline has been upheld after an administrative hearing.  It is also clear that if the investigation is ongoing, or an administrative appeal of imposed discipline is pending, then the allegations have not yet been “sustained” and disclosure is not yet warranted.  However, what if a peace officer decides to resign prior to the completion of an investigation or prior to discipline, in an effort to dodge a negative mark on their record?  *Cue AB 1599.*  AB 1599 seeks to “increase police transparency” and expand upon SB 1421 by modifying the language of Penal Code section 832.8(b).  It would make available for public inspection “personnel records pertaining to a peace officer or custodial officer accused of sexual assault involving a member of the public when the peace officer or custodial officer resigns before the employing agency has concluded its investigation into the sexual assault…”  Thus, records previously which at least arguably may not have been subject to disclosure would now clearly be subject to disclosure to the public pursuant to a PRA request.

AB 1599 and its proposed changes to the existing law are still in its preliminary stages. Until further legislative guidance on SB 1421 has been provided and AB 1599 becomes law (or not), we recommend public agencies seek case-specific legal advice to decide whether they will disclose records regardless of whether a “sustained finding” has been made regarding officer-involved sexual assault, or whether a peace officer has resigned prior to the completion of an investigation.

We authored prior blog posts on SB 1421 which can be found here:

In the meantime, stay tuned for upcoming updates on AB 1599.

It might surprise many California public employers that there is no law that requires them to provide meal and rest breaks to most of their employees.  Similarly, there is no law that requires California public employers to pay overtime to most of their employees for working over eight hours in a day or pay “double time” for working over 12 hours in a day.

What about the FLSA?  Nope.  With respect to overtime, the FLSA requires that an employee work over 40 hours in a seven-day work week before being paid overtime.  The federal law is silent on daily overtime.  Similarly, the FLSA does not mandate meal periods or daily overtime.

What about California law?  Well, this is where it gets a bit interesting.  For example, a California public employer or employee may have looked up Labor Code section 510, which states:

Eight hours of labor constitutes a day’s work.  Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee.  Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee.  In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee.

Upon reading this, one might be convinced that California public employers are required to pay daily overtime and/or double overtime.

In 2009, however, the California Court of Appeal held in Johnson v. Arvin-Edison Water Storage District, that “unless the Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector.”   Section 510 does not specifically reference public employers, and under the plain language of Johnson’s holding, it should not apply to them.

Still not convinced?  Well, let’s look at the California Industrial Welfare Commission Wage Orders.  For example, IWC Wage Order 4, which applies to employees in professional, technical, clerical, mechanical, and similar occupations, states, in Section 1, paragraph (B):

Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district.

Notably missing from this are Sections 3, 11, and 12.  Section 3 requires daily overtime.  Section 11 requires meal periods.  Section 12 requires rest periods.  This Wage Order, and others like it, expressly exempt California public employers from state overtime provisions and meal and rest break requirements.

But before we finish, we have to note the exceptions.

Some agricultural and irrigation public employees may be covered by state IWC Wage Order 14, which regulates agricultural and irrigation employees.  Commercial drivers for public entities are covered by portions of state IWC Wage Order 9, which regulates the transportation industry.  In addition, Wage Order 15 generally applies to public entities that employ in-home services support workers.

Why do California public employers still provide meal breaks and daily overtime?

More likely than not, this is because public agencies do provide for meal periods and rest breaks in some agency rule or policy or in a collective bargaining agreement.  This is where you will also likely find daily overtime provisions.  This is important to know so that California public employers can properly enforce these requirements, either under the law or by contract.