Here is Part 1 of some common issues that may arise for California employers as a result of Coronavirus or COVID-19. It is important to read this post in conjunction with our resources post here. In addition, these posts identify basic issues, but are not legal advice. It is important to follow up with competent employment law counsel or more detailed legal research. Please be careful.
- EMPLOYEES’ OWN ILLNESSES
Naturally, illness due to COVID-19 may result in absences as any illness would. However, these absences may be more widespread than normal if predictions come to pass.
There are laws that provide for job-protected time-off. There are provisions that provide for pay due to absence, job protected or not. And there are those that provide for both. Employers must be familiar with all three.
A. JOB-PROTECTED, PAID SICK LEAVE FOR EMPLOYEES’ OWN ILLNESS
California state law and some local jurisdictions require paid sick leave, and protect employees from discipline or discharge when they use sick leave balances. Illness due to COVID-19 is no different from other types of illness, in that the same sick leave laws apply. Here are the California law’s FAQs.
A potential pitfall: Employers may grow frustrated or overwhelmed with sick leave requests. However, these laws have very strict documentation requirements. It is unlawful to require more documentation than the laws permit.
Another issue: employers may be wary of reinstating a worker who claimed illness due to COVID-19. Paid sick leave laws and others may limit documentation employers may require. In addition, insistence on special documentation may trigger “regarded as” claims of disability discrimination or other legal complications.
B. OTHER JOB-PROTECTED SICK LEAVE DUE TO EMPLOYEES’ OWN ILLNESS
Employers may have in place PTO or sick leave policies in addition to what the state or local ordinances require. Depending on the policy, these leaves may be job protected as a matter of contract. Some employers are loosening or expanding these policies specifically for the COVID-19 virus. Employers should follow their policies with respect to documentation required. When statutory sick leave overlaps with policies, employers must follow the statute or ordinance.
It is laudatory and may be necessary as a practical matter to loosen policies or relax disciplinary action related to attendance. But employers must carefully draft these new policies and either tailor them to COVID-19 or not. The precedent set may result in unintended consequences when the crisis is over.
Policy aside, in the event an employee’s illness continues beyond the period of state or local paid sick leave time, employees may be eligible for job-protected leave under state or federal medical leave laws. Employers may require the documentation that these laws permit.
Some employees and employers are not covered by state and federal leave laws, such as the California Family Rights Act or federal Family and Medical Leave Act. Nevertheless, the Americans With Disabilities Act or Fair Employment and Housing Act could require a temporary period of unpaid medical leave as a form of reasonable accommodation under certain circumstances. Variables include the nature of the job, the duration of the leave, the availability of other accommodations, and the hardship to the business. Leave as a form of accommodation is tricky and cannot be fully explained in a blog post. Get advice.
Pay may be available to employees who take unpaid leave under CFRA, FMLA, or the ADA/CFRA. California has a state disability insurance program administered by the Employment Development Department. Employers must provide employees with information about the SDI benefit. Here is some information from the EDD.
COVID-19 may bring new emphasis and scrutiny to reinstatement from longer leaves of absence. Employers have the right to know that an employee is released to return to work in most circumstances. However, there are limitations. Requiring an employee to have a physical examination to return to work may be lawful in some cases, but only at the employer’s expense and if job-related and consistent with business necessity, which is a difficult standard to meet. As of now, there is no general “COVID-19” exception. Employers should be prepared to accept the employee’s physician’s certification unless there are circumstances unique to the workplace or industry. (For example, employees working in healthcare settings may indeed be subject to heightened requirements).
2. JOB-PROTECTED LEAVE FOR EMPLOYEES’ FAMILY MEMBERS’ ILLNESS
California paid sick leave and local ordinances permit use of mandated sick leave to care for certain covered relatives’ illnesses in addition to their own.
Employers also must be aware of “Kin Care” – Labor Code sections 233 and 234, which require employers to allow employees to use part of their sick leave balances for illnesses of covered relations.
The California Family Rights Act and federal Family Medical Leave Act, if they apply, could provide up to 12 weeks of unpaid leave to care for a covered relation. However, as stated, some employers and employees are ineligible.
There is no “reasonable accommodation” leave to take care of a relative with a disability.
Employees taking care of a covered relation may be eligible for “Paid Family Leave” under California law. This is another program administered by the Employment Development Department. Employers must provide employees with information about the Paid Family Leave program. Here is some information from the EDD about PFL and COVID-19.
3. SOCIAL DISTANCING LEAVE / FEAR OF ILLNESS
It may be that an employee is uncomfortable working in an office environment with others and wishes to stay home to work. In some industries requiring presence at the work place, that is impossible. In other environments, however, telecommuting or teleworking is possible.
As of now, there is no general requirement to permit an employee to work remotely because of a preference. However, employees may find a way to seek telework as a “reasonable accommodation” for a disability. “Fear of COVID-19” is not a recognized disability as of now. But there are many disabilities on the Internet for which telework could be an accommodation. And there are employees with compromised immune systems or who have peculiars risk factors for whom COVID-19 presents a special risk. Telecommuting for such employees could be a more appropriate accommodation for them.
Employees who seek telecommuting or telework as an accommodation should be handled as any other employee seeking accommodation: an appropriate interactive process, evaluation of the limitations associated with the alleged disability, alternative accommodations, and potential hardships. The employee is not necessarily entitled to his or her choice of accommodation. Rather, an accommodation must be medically necessary and effective and enabling the employee to perform his or her essential job functions, without causing undue hardship to the employer. Any effective accommodation that accomplishes the foregoing will do.
Disability aside, “social distancing” is a new buzzword that has swept the nation. The CDC and other agencies have recommended employers consider allowing telecommuting if feasible to help forestall or prevent the spread of COVID-19. In the next post, we’ll discuss some legal and practical considerations for employers that come along with telework.
If telework is impossible (such as at a restaurant or job that requires interaction with the public) and an employee is simply unwilling to work at the place of business, the employer can consider separation for job abandonment, or a personal leave of absence with or without reinstatement rights. Employers must be consistent with reinstatement decisions.
Of course, employers may be looking to cut staff if business has dropped off anyway. Therefore, it may be that workers unwilling to work will take voluntary layoffs.
Finally, employees may seek job-site related changes as part of “social distancing” programs. Again, in most cases there are voluntary measures employers *may* take to help reduce the potential spread of COVID-19, along with sanitation and hygiene. Employers should review the recommendations in the resources post we linked above. In limited circumstances, employees may seek physical worksite restructuring as reasonable accommodations for disabilities, which may include compromised immune systems and the like. It therefore may be necessary to engage in the interactive process when these requests occur. It may be when worksite changes are impossible, leaves of absence are appropriate. And, thus, employment law is a circle.
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This is it for Part 1. In Part 2, as discussed, we will address Telecommuting, as well as “forced” leave. Part 3 will touch on some wage and hour issues….