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Coronavirus / COVID-19 Update for California Employers # 14 – California’s Mandatory Face Coverings, IRS Vacation Donation, EEOC Guidance

by D. Gregory Valenza | | Jun 18, 2020

Welcome to installment #14 of our series on Coronavirus / COVID-19 employment law issues affecting California employers.  See the other posts on the blog here.

Masks/ Face Coverings are Mandatory in Many Situations

The California Department of Public Health just issued new guidance (here).  The agency orders mandatory face coverings in a variety of situations that will affect the workplace:

People in California must wear face coverings when they are in the high-risk situations listed below:

  • Inside of, or in line to enter, any indoor public space;1
  • Obtaining services from the healthcare sector in settings including, but not limited to, a hospital, pharmacy, medical clinic, laboratory, physician or dental office, veterinary clinic, or blood bank;2
  • Waiting for or riding on public transportation or paratransit or while in a taxi, private car service, or ride-sharing vehicle;
  • Engaged in work, whether at the workplace or performing work off-site, when:
    • Interacting in-person with any member of the public;
    • Working in any space visited by members of the public, regardless of whether anyone from the public is present at the time;.
  • Working in any space where food is prepared or packaged for sale or distribution to others;
  • Working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities;
  • In any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance.
  • Driving or operating any public transportation or paratransit vehicle, taxi, or private car service or ride-sharing vehicle when passengers are present. When no passengers are present, face coverings are strongly recommended.
  • While outdoors in public spaces when maintaining a physical distance of 6 feet from persons who are not members of the same household or residence is not feasible.

There are exemptions.  These include

    • Persons with a medical condition, mental health condition, or disability that prevents wearing a face covering. This includes persons with a medical condition for whom wearing a face covering could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a face covering without assistance.
    • Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.
    • Persons for whom wearing a face covering would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.
    • Persons who are seated at a restaurant or other establishment that offers food or beverage service, while they are eating or drinking, provided that they are able to maintain a distance of at least six feet away from persons who are not members of the same household or residence.

Note – the “medical condition” exemption will increase the number of people claiming they have conditions that exempt them.  Be prepared for a wave of “reasonable accommodation” requests.  Also be prepared for  forgeries and fraudulent certifications and lawfully handle these issues.  The “interactive process” will be essential.  Also, the CDPH has a suggestion for those who claim exemption from wearing a cloth face covering:

Persons exempted from wearing a face covering due to a medical condition who are employed in a job involving regular contact with others should wear a non-restrictive alternative, such as a face shield with a drape on the bottom edge, as long as their condition permits it.

The mandatory use of face coverings may raise “uniform” and section 2802 expense reimbursement issues. Or not.  It depends on the rules employers set for what masks are acceptable and such.  Be careful out there.

IRS Guidance on Vacation Donation

When an employee wants to donate PTO or vacation to another employee experiencing a tragedy, that sounds like a generous, simple gesture.  But guess what?  It creates a mess. The vacation pay belongs to the donor. As such, it is taxable to the donor as wages.  It also may be taxable to the recipient.  Donor employees may not know this; payroll departments may not be able to handle the donation and the tax issues, etc.

The IRS has created very narrow, limited exceptions during certain times of public emergency, such as Hurricane Katrina.  When an employer’s vacation donation program satisfies IRS guidelines, the vacation can be donated tax free by the donor.  In the past, the only circumstances under which vacation donation would qualify would be a public disaster, as declared by the President of the U.S.

The IRS recently issued guidelines allowing for vacation donation programs when the donee’s need is caused by COVID-19.  You can view the new guidelines here.  However, it’s best to get advice from qualified tax professionals and employment counsel before tangling with IRS rules.

EEOC and Antibody Testing

The Equal Employment Opportunity Commission has updated its FAQs on COVID issues.  You can view them here.

The newest information addresses anti-body testing.  The agency will not permit employers to require employees to be antibody tested before they are allowed to work:

A.7.  CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.  Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test).  The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

In contrast, the EEOC permits testing for the active virus.

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