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-19 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.
Older adults are not strictly protected under either the Americans with Disabilities Act (“ADA”) or the Fair Employment and Housing Act (“FEHA”) under these circumstances. However, FEHA allows 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.
