• Justin Hein

Coronavirus and California Employment Law

Updated: Mar 8, 2020

California has more coronavirus cases than any other state and has also been the nucleus of the quarantine effort. Learn what employers can do to help and engage in best practices.

As of posting this blog entry, 245 cases of the coronavirus have been confirmed in the U.S., including 51 in California, 2 of which are in Sonoma County. 45 U.S. cases from the Diamond Princess cruise ship are unassigned. There have been 14 deaths in Washington state and one in California.

Gov. Gavin Newsom declared a state of emergency in California on March 4, 2020 in response to the outbreak. Officials in Sonoma County declared a local health emergency on March 2. At least 8,400 people who have returned from overseas are being monitored. There are a rumored 9 additional cases in California, but that is not confirmed.

What is Coronavirus?

Coronaviruses are a large family of viruses that are common in humans and many different species of animals, including camels, cattle, cats, and bats. Rarely, animal coronaviruses can infect people and then spread between people, such as with MERS-CoV and SARS-CoV.

The coronavirus causing the present global health scare has been identified as COVID-19. It is a new (also referred to as novel) respiratory virus that originated in Wuhan, Hubei Province, China in late 2019. Chinese health officials reported tens of thousands with the illness and this strain appears to be spreading from person-to-person. The virus is contagious and potentially fatal, however has a fatality rate of less than 3 percent.

At the present time, there is no vaccine, cure or specific treatment.

Information about cornoavirus and COVID-19 is available at no cost on the Center for Disease Control and Prevention (CDC) website. Interim guidance is also available, updated as recently as March 5.

How is Coronavirus Spread?

Health authorities have not confirmed how COVID-19 is transmitted but suspect it is spread person-to-person, similar to influenza or the common cold. There is also evidence that the virus has been spread by animal sources, including individuals with links to seafood or animal markets.

They do not believe you can get it from air, water, or food.

Please note - The incubation period, or the time interval from infection to onset of symptoms, is from two to 14 days. During this period, an individual can be infected and spreading the disease although they may not be experiencing the signs and symptoms of the virus.

What are the Signs and Symptoms of Coronavirus?

Individuals infected with the COVID-19 strain of coronavirus have displayed the following symptoms:

  • Mild to severe respiratory illness.

  • Fever.

  • Cough.

  • Shortness of breath or difficulty breathing.

How Infectious is Coronavirus?

Virus transmission may happen on a spectrum, and authorities are not sure if the virus is highly contagious or less so. For person-to-person transmission, health authorities suspect the COVID-19 strain of coronavirus is spread through coughing and sneezing, similar to how influenza and other respiratory pathogens are spread.

Individuals with "close contact" with an individual who has received the virus are especially at-risk. CDC defines close contact as being within 6 feet of an individual with the virus for a prolonged period of time or having direct contact with infectious secretions (e.g. being coughed on, etc.).

CDC does not define walking past a person with the virus, being in the same indoor environment (e.g. classroom, waiting room) as a person with the virus as being in "close contact."

Please note - similar viruses have been observed to live for a few hours outside of the human body, depending on the hardness of the surface the virus is on, as well as ambient air conditions.

How can I Protect Myself?

Because there is currently no vaccine to prevent infection, the best way to protect yourself is to avoid being exposed to this virus. The CDC recommends the following additional steps:

  • Wash your hands often with soap and water for at least 20 seconds.

  • Use an alcohol-based hand sanitizer that contains at least 60 percent alcohol if soap and water are not available.

  • Avoid touching your eyes, nose and mouth with unwashed hands.

  • Avoid close contact with people who are sick.

  • Stay home when you are sick.

  • Cover your cough or sneeze with a tissue, then throw the tissue in the trash.

  • Clean and disinfect frequently touched objects and surfaces.

Suspect Someone has Coronavirus?

If you exhibit symptoms of the COVID-19 strain of coronavirus within two weeks of traveling from China, you should contact a health care professional and mention your recent travel.

If you have had close contact with someone exhibiting the COVID-19 strain of coronavirus symptoms who has recently traveled from China, you should call ahead to a health care professional and mention your close contact and the person's recent travel.

Your health care professional will work with your state's public health department and CDC to determine if you need to be tested for the COVID-19 strain or coronavirus.

Symptomatic people who meet CDC’s definition of Persons Under Investigation (PUI) should be evaluated by healthcare providers in conjunction with local health authorities.  PUIs awaiting results of testing for COVID-19 should remain in isolation at home or in a healthcare facility until their test results are known.

When to Tell Employees to Remain Away from Work?

You should consider telling employees returning from China that they should remain away from work for 14 days from their return. You can also consider telling the employees to self-monitor for any symptoms of coronavirus. If any of the above-described symptoms occur, employees should consider being evaluated by a health care provider. Further, even if not symptomatic, employees may also want to consult a health care provider to confirm that they are not infectious before returning to work.

But just as any illness, best practices are to tell sick employees to remain home from work until they are no longer sick. Specifically, employees should remain at home and not come to work until they are free of fever (100.4° F or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants).

Best Practices for Employers to Limit Exposure?

Below, please find the recommended strategies for employers to implement immediately:

  • Advise employees to check themselves for symptoms of acute respiratory illness before coming to work.

  • Actively encourage sick employees to stay home.

  • Review, revise, and update your company's Injury and Illness Prevention Program

  • Review and ensure compliance with company's leave, disability, and workers compensation policies.

  • Ensure that leave policies have been communicated to employees and are consistent with the law and public health guidelines

  • Ensure that third-party companies, vendors, and customers are also abiding by stay-at-home-when-sick guidelines

  • Communicate any added flexibility to existing leave policies to employees about staying at home to take care of sick family members and children

  • Communicate cough and sneeze etiquette (e.g. cover nose/mouth with crook of elbow) and hand washing etiquette (e.g. wash hands and face with soap for 20 seconds or use of sanitizer that contains at least 60% alcohol)

  • Post CDC flyers on Stop the Spread of Germs and Symptoms of Coronavirus

  • Routinely clean all frequently touched surfaces in the workplace, such as workstations, counter-tops, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label.

  • Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.

  • Provide personal protective equipment, like masks and gloves, for employees in the workplace.

  • Have your IIPP Manager register for updates with the CDC.

  • Restrict work travel abroad, especially to locations with prevalent coronavirus exposure (e.g China, Italy).

  • Implement social distancing strategies, including avoiding close physical contact (e.g., shaking hands) and large gatherings of people.

  • Encouraging telecommuting by employees.

  • Encouraging flexible work hours.

  • Postponing or canceling large work-related meetings or events.

  • Develop a natural disaster contingency plan.

Please note - All preventative measures and policies should be enforced uniformly and consistently by employers. Employers should be careful not to make assumptions based on characteristics protected under state and federal law.  For example, employers may not take virus-related actions (e.g. such as prohibiting employees from coming to work or asking questions about employee travel and contact), based on an employee’s race, age, ethnicity, or national origin.

Does Leave via Family and Medical Leave Act (FMLA) or California Family Rights Act (CFRA) Apply?

Yes, coronavirus would qualify as a "serious health condition" under FMLA or CFRA, allowing an employee to take leave if either the employee or an immediate family member contracts the disease. For an employee to invoke their 12 weeks of unpaid FMLA leave, he or she must have a “serious health condition” and otherwise satisfy the FMLA eligibility criteria. The employee would be entitled to job reinstatement as well.

Please note - Communications with employees about medical conditions should be kept confidential and medically-related documents kept in a location separate from the employee’s personnel file. Co-workers can simply be told that an unidentified employee with whom they have had recent contact has been exposed to the coronavirus or has tested positive.

Does Workers' Compensation Apply?

Perhaps, if the employees contracted the disease in the course of their employment. Does the employees' work require them to be exposed to persons who are infected? Typically, health care workers fall into this category. However, if an employee incidentally contracts the disease from a co-worker, vendor, or customer, there likely will be no workers' compensation liability.

If there is workers' compensation liability, employers are responsible for covering the costs of reasonable and necessary medical care, temporary total disability benefits, and permanent disability (if any). Employers should engage a competent medical professional on infectious diseases for advice to determine whether the disease is work-related.

Does Disability Leave and Benefits Apply?

Yes, if such payments are provided in an employer's benefit plan. Employers should review the limits of coverage in the benefit plan to ensure they have competent medical resources to administer the program.

Does the Americans with Disabilities Act (ADA) Apply and Restrict the Employer?

Not if it's a pandemic. The ADA protects employees with disabilities, but during a global health emergency, as recently declared by the World Health Organization (WHO), employees can be required to be medically examined to determine if they have contracted the disease when an employer has a reasonable belief that employees will pose a direct threat due to a medical condition. WHO raised its risk assessment of the coronavirus to its highest level on February 28.

The Equal Employment Opportunity Commission has guidance (Pandemic Preparedness) to distribute to a workforce in the event of global health emergency. It also has developed guidance specific to the Application of the ADA and Rehabilitation Act to the Coronavirus. In the pandemic guidance, it states:

if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.

As such, employees who have contracted the virus, symptomatic employees, or employees who are at risk due to being in close contact with someone who has the virus, must all be treated the same as non-infected employees. This means that they must be permitted to work so long as they can perform their essential job functions. However, if the employee poses a health or safety threat to the workforce (e.g. has the illness, is symptomatic, or is at-risk due to having been in close contact), the employer may elect to instruct the employee to go home or place them on leave. Employers are also authorized to ask employees or force employees to take a temperature reading (even though in a non-pandemic this would be considered a medical evaluation).

Please note - The CDC is not presently recommending that employers require a health care provider's note even for employees to return from illness consistent with the symptoms of the COVID-19 strain of the coronavirus. Health care provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.

Any Guidance or Requirements from Occupational Safety and Health Administration (OSHA)?

OSHA has issued a fact sheet regarding protecting workers in the case of a global health emergency. Cal/OSHA has put out specific Interim Guidance regarding the COVID-19 strain of coronavirus, referencing the guidance provided by the CDC.

Please note - OSHA or Cal/OSHA could potentially cite an employer for exposing its workforce to the coronavirus without protective measures. At present, OSHA and Cal/OSHA are awaiting instruction from the CDC as the authority to determine when to issue such a citation. Specifically, if the CDC identifies particular industries or particular conduct as being generally hazardous and avoidable, then the employer is expected to know and implement all possible measure to protect its employees. And if it not does not take such action, the employer could be subject to citation. As such, employers should conduct a hazard assessment for potential exposures and develop an action plan that includes hazard identification, hazard prevention procedures, employee training, medical monitoring surveillance, and record keeping, all consistent with their IIPP.

Notification or Negotiation Obligation under a Collective Bargaining Agreement?

There may be an obligation for an employer to negotiate with a union regarding the implementation of any new policy to limit exposure of the COVID-19 strain of the coronavirus. The most likely scenarios would involve the employer's unilateral authority to place employees out sick or on leave, as well as how to handle employees subject to a governmental quarantine policy. That is because implementation affect the terms and conditions of employment, which include wages and hours at work. So, depending on the management rights clause in the contract, an employer may be able to send the employee home but may still have to pay the employee based on the union rights clause.

What about a School Emergency?

Labor Code, section 230.8 also provides that employers with 25 or more employees working at the same location must permit employees to take time off to address a “school emergency.” A school emergency definition includes when a child cannot remain in school due to “a natural disaster, including, but not limited to, fire, earthquake, or flood.”  Employees are permitted to take up to 40 hours per year to attend to these school emergencies.

Is there an Obligation to Accommodate a Request to Not Work in a Public-Facing Position?

There may be an obligation to accommodate such employees. However, there would need to be some objective evidence that they could potentially be exposed to individuals who are infected, symptomatic, or in close contact with those who have been.

Employees should not be disciplined for refusing to work if they believe that there is a risk of infection because making such a complaint may be a protected activity. If the employer can establish that there is no basis for any exposure to the disease, the employee does not have to be paid during the time period the employee refuses to work.

Best Practices are Constantly Changing

The above answers are based upon known, available information at the time of publication. It is an uncertain time for both employers and employees alike, as the future impact of COVID-19 on the everyday life of U.S. citizens remains unclear. Thus, employees and employers are encouraged to work together, with input from their respective legal counsel, to help navigate these complex issues.

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