In Episode 81 of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank is joined by employment law experts Bianca Saad and Matthew Roberts to discuss the most common COVID-19-related questions employers have been asking the CalChamber’s Labor Law Helpline, including requiring test results, what to do if an employee doesn’t want to return to work, workplace mask obligations, and mental health considerations.
This podcast was recorded on July 20. Listeners should be aware that given the unpredictability of the COVID-19 crisis, government guidance and mandates may be altered at any time. Information presented in this podcast is accurate as of July 20, 2020.
Requiring Test Results
Time Discussed: 02:00
Many of the questions that come through the Labor Law Helpline, Frank says, deal with COVID-19 testing. Can employers, she asks, require that an employee, who previously tested positive for COVID-19, submit a negative COVID-19 test result before returning to work?
At the moment there is no guidance that allows employers to establish such a requirement, Saad replies. Moreover, employers cannot require employees to submit test results in any capacity—even to prove that the employee is indeed positive for COVID-19.
Per Equal Employment Opportunity Commission (EEOC) guidance, however, employers may ask for a note from a medical professional that clears the employee to return to work, Saad says.
To help determine whether an employee may return to work, employers can refer to the guidance released by the California Department of Public Health (CDPH) on June 16 that outlines virus infection timeframes.
After this podcast was recorded, the state released a COVID-19 Employer Playbook For a Safe Reopening. (See Alert story.)
For example, Saad explains, an employee may return to work if “…three days…have passed since there have been any symptoms and a minimum of 10 days…have passed since the date of their first COVID-19 test or from the time they have had symptoms.”
What is important, she stresses, is that employers continuously check back to the Centers for Disease Control and Prevention website, and their local health departments for updates.
The CalChamber COVID-19 resource page features links to important government guidance and information, including the June 16 CDPH guidance. Visit: www.calchamber.com/coronavirus.
Refusing to Return to Work
Time Discussed: 06:00
Another question that many employers are asking is what to do if any employee does not want to return to work.
Roberts says it’s very important that employers begin an interactive process and ask “Why?” Perhaps the employee cannot return to work because they’ve been ordered by their county to self-quarantine. Perhaps they have recently traveled outside the country. Or perhaps the employee has an underlying medical condition that places them at higher risk to COVID-19 complications.
It is important that employers determine why the employee is not returning to work because the reasoning the employee gives will determine the employer’s obligations. For example, Roberts explains, if an employee is caring for someone who is positive for COVID-19, they may be entitled to leave under the Families First Coronavirus Response Act (FFCRA).
If none of the above scenarios apply, then it is up to the employer’s discretion to decide what to do, Roberts says, “but there is a lot of information gathering that employers need to go through first before they reach that step.”
Workplace Face Coverings
Time Discussed: 09:58
Now that California mandates that face coverings be worn to slow the spread of COVID-19, many employers want to know what their obligations are and what to do if an employee refuses to wear a mask at work, Frank says.
Saad says employers should refer to the June 18 CDPH guidance as it addresses a variety of scenarios that require face coverings in the workplace, such as when an employee is engaging with members of the public, working in an area where food is prepared, or when working or walking in common areas like hallways, stairways, elevators or parking facilities.
She stresses that establishing a face covering policy is important, especially since the mask mandate is enforceable through Division of Occupational Safety and Health (Cal/OSHA) fines.
Lastly, she says, employers should check their local orders, as some localities, such as Sacramento, have ordered employers to provide face coverings to their employees.
Frank recommends that businesses establish a mask policy within their dress code policy and enforce the mask policy the way they would normally enforce the dress code policy.
Mental Health Concerns
Time Discussed: 15:00
Whether it is the lack of social interaction or concern for one’s health or caring for children while working at the same time, employees may be impacted by the stress of the pandemic and performance may suffer, Frank says. Can this stress, she asks, turn into a serious condition protected by law?
Roberts replies that mental health issues can trigger disability protections. Past conditions may be exacerbated by this stress or sometimes new conditions may arise, he says, and these issues may manifest in performance issues or excessively calling out.
Roberts suggests that employers have a good faith interactive process. Employers should try to figure out how to help the employee perform their job duties—whether that means a modified schedule or removing the more tangential job duties they have.
If the company has one, employers should provide the employee with information about the Employee Assistance Program. If recommended by a medical provider, leave may be offered. However, because COVID-19 has burdened the health care industry, Roberts says, employers should keep in mind that it may take longer to get the ordinary medical certifications that the employer would normally get before the COVID-19 pandemic.
Ultimately, he says, employers should try to be flexible and be creative as to how they can help their employees meet their job duties.
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