Labor and Employment

My colleague Brendan Begley blogged last week about the risks employers face due to the threat of COVID-19 in the workplace.  As he noted, employees have the right to expect employers to follow city, county, and state orders and take reasonable precautions to minimize the risk to a known “direct threat” to health and safety.

Now, in the wake of the horrific death of George Floyd 10 days ago, the citizens of our nation have risen up to demand racial equality and an end to systemic injustice.  Our nation’s pent up frustrations have boiled over, and, unfortunately, some of that frustration is being expressed violently.

In the last few days, I’ve been hearing from business owners who were focused on steps to reopen after COVID-19, but are now worried about preventing potential destruction of property, theft, and violence.  While owners work to protect their businesses, they must also not forget to take reasonable steps to protect their employees from harm.

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As workplaces begin reopening in the coming weeks, attorneys are predicting a rash of lawsuits by employees against their employers related to the COVID-19 pandemic.  It seems clear that workers-compensation preemption may immunize employers from most civil actions alleging that employees became infected with the virus on the job.  However, other types of employee lawsuits may reach fever pitch.

There does not appear to be any vaccination to alleviate many of the anticipated claims.  Still, just as good hygiene practices may help flatten the curve of the actual coronavirus, good employment practices can help reduce the incidence of such lawsuits in your workplace.  Here are four types of employment claims that are likely to spread like a contagion as employees are expected to (or actually do) return to their jobs, along with some inoculations that employers should consider:

Disability Claims

According to at least one media outlet, the head of the U.S. Equal Employment Opportunity Commission’s New York office reported this week that charges accusing employers of failing to accommodate workers’ disabilities are outpacing any other allegation tied to COVID-19 in the Empire State.  Employers should anticipate similar developments here in the Golden State.

Indeed, California’s Fair Employment and Housing Act (“FEHA”) and its federal counterpart, the Americans with Disabilities Act (“ADA”), both prohibit disability discrimination and require employers to provide reasonable accommodations to disabled employees.  An ounce of prevention – by engaging in the interactive process (from a safe distance) with infected or otherwise disabled employees to identify reasonable accommodations – often is more economical than the pound of cure that would come from prevailing in a failure-to-accommodate lawsuit.

In this regard, employers should remember that each request for an accommodation must be analyzed independently, and that a leave of absence may constitute a reasonable accommodation.  Thus, if employees request a leave of absence, either to get over their own COVID-19 infection or to reduce the risk of being exposed to the coronavirus due to some preexisting disability that puts them at greater risk, serious thought must be given to fashioning a workable accommodation.

Some employers may find respite in the notion that a coronavirus infection might not constitute an actual disability under the ADA or the FEHA, as the illness typically impairs its victims moderately or for only a short duration of time.  But this brand of comfort is often an ineffective placebo and not a recommended treatment to prevent the spread of disability lawsuits.  That is because the effects of a COVID-19 infection may be more long-lasting or create a more severe impairment for some individuals.  Thus, it would be a mistake for an employer to assume that such an infection can never amount to a protected disability.

At the same time, both the FEHA and the ADA prohibit employers from discriminating on the basis of a perceived disability.  Thus, it is foreseeable that some employers might decide to treat certain workers differently than others because they believe certain workers have some other actual or perceived medical condition (e.g., a persistent cough, or diabetes, or an immunodeficiency, or Chronic Obstructive Pulmonary Disease).  Employers may worry that letting such vulnerable employees return to the job or interact with coworkers might make them more susceptible to getting or spreading COVID-19.  While treating such employees differently in this manner may seem (or even might actually be) an act of caring and concern that would rival Florence Nightingale, such actions can lead to costly challenges in court (especially if they are applied in a clumsy fashion).

Disability harassment is another type of claim that employers may anticipate.  One way this type of claim may arise is when coworkers, managers or supervisors develop a notion that a particular employee was (or is) infected with coronavirus and spread (or is spreading) the sickness to the workplace.  If such coworkers, managers or supervisors are allowed to harass, insult or ostracize an employee on that basis, the employer may find itself in need of some urgent care from lawyers.

Tameny Claims

The so-called Tameny claim is named after the California Supreme Court’s decision 40 years ago in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.  Under the high court’s ruling in that case, a worker may pursue a lawsuit when he or she alleges that the employer terminated his or her employment in violation of some public policy.

It is difficult to tally how many Tameny claims are spreading in California, as the administrative agencies that handle claims of disability discrimination (or other types of discrimination, harassment or retaliation) typically are not responsible for investigating a Tameny claim.  So we may not know for many months how many Tameny claims have been filed in court; nonetheless, there is good reason to think the number will be high.

Keep in mind that California has a public policy that requires employers to “furnish employment and a place of employment that is safe and healthful for the employees therein.”  (Cal. Labor Code, § 6400.)  Also bear in mind that California has a public policy that prohibits employers from “preventing an employee from disclosing information to a government or law enforcement agency,” or to a manager or supervisor, “who has authority to investigate, discover, or correct the violation or noncompliance.”  (Cal. Labor Code, § 1102.5.)

With those public policies in mind, there are two general ways to become exposed to a Tameny affliction.  One arises when an employee is fired for refusing to execute some task on the job that actually would be unlawful.  The second arises when the employee is fired for complaining about what he or she reasonably perceives to be unlawful activity in the workplace (even if the activity in question turns out to be legal).

Regarding the first variety, it is easy to foresee the following scenario developing:  An employer directs an employee to return to work and the employee refuses and is fired.  If the employer instructed the employee to return before the government lifted restrictions for that specific workplace, terminating the employee for refusing to return may violate a public policy.  Likewise, if the employer waits until the restrictions lift but then fails to enforce regulations requiring social distancing or sanitary practices or the donning of personal protective equipment (“PPE”), firing an employee for refusing to work under such conditions may also be in violation of public policy.

Turning to the second type of Tameny ailments, it is equally easy to anticipate these scenarios occurring:  An employer directs an employee to return to work either before the restrictions are lifted or after the restrictions are lifted but without implementing or enforcing policies for social distancing, sanitation, or PPE.  The employee complies, returns to the job, and performs his or her work, but not quietly or without protest.  Instead, the employee complains about the workplace conditions, either to a governmental agency or a supervisor, and is subsequently fired.  Terminating an employee for complaining about such workplace conditions may be in violation of public policy.

One aspect of many Tameny claims that make them look less severe than other types of claims is that they often do not result in the employer having to pay the employee’s attorney fees.  However, given the other undesirable symptoms and bad side-effects that such lawsuits can trigger (e.g., lost productivity due to litigation, or the risk of emotional-distress and even punitive damages), that is a bit like telling a sick patient suffering from simultaneous chills and sweats that a fever of 103.8 degrees is not as bad as one that is 104 degrees.

Leave Claims

There are a number of federal and state laws that require various employers to provide a certain amount of protected leave to covered employees; for example, the federal Families First Coronavirus Response Act (“FFCRA”), the federal Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”).

The FFCRA was passed just this year to provide workers with protected leave if they have been impacted in various ways by the coronavirus and related shelter-in-place orders.  It has already resulted in what some might call an epidemic of lawsuits where employees have claimed that their employer interfered with their protected leave, denied them benefits, or fired them in retaliation for requesting leave.

Meanwhile, the FMLA and the CFRA are not geared specifically for coronavirus-related leaves, like the FFCRA is, but those laws may still protect such leaves of absence.  Making things more complicated, there may be overlap between these leave entitlements and some employers may be subject to all of these laws, while others are subject to some or none of them.

It is very probable that employers will be faced with many more leave requests, either to care for someone who has been infected with COVID-19 or to stay at home with a child whose school or daycare facility remains closed while some restrictions are lifted.  Of course, employees also may request leave to deal with other health conditions that deteriorated while they were unable to get routine medical treatment while sheltered in place.  Each leave request should be given serious consideration.

Discrimination Claims

Whereas some employers may be struggling with too many employees in need of leave, others may be grappling with having to lay off employees due to downturns in business as a result of the shelter-in-place restrictions.  In either scenario, care must be given to how such decisions are made and serious thought must be devoted to the potential results.

Such decisions may trigger claims under the FEHA or its federal counterparts, Title VII of the Civil Rights Act or the Age Discrimination in Employment Act.  Those laws bar making employment decisions on the basis of certain protected categories; for instance, age, race, national-origin, gender or religion.

When deciding which employees are going to be given leaves of absence, or laid off, or assigned to certain duties, consistent procedures and rationales must be followed.  Even then, under what is called the disparate-impact type of claim, a neutral policy or practice can lead to discrimination liability if it has a statistically disproportionate impact on a certain class of workers.

Inoculate Against Such Claims

There is no vaccine that will prevent or get rid of all such claims, but the harmful effects of such lawsuits can be ameliorated by following certain precautions.

First, be sensitive to actual or perceived disabilities, do not make medical assumptions, work hard to identify and implement reasonable accommodations for disabled employees, and be vigilant in guarding against harassment of employees on the basis of some perceived or actual medical condition.

Second, take every request for a disability accommodation or leave of absence seriously and analyze each one independently on its own merits.

Third, do not violate or direct your employees to violate governmental shelter-in-place, social-distancing, sanitary or PPE restrictions or regulations.

Fourth, whenever making a termination decision, be sure it is for reasons that have absolutely nothing to do with the employee’s refusal to violate some public policy or the employee’s complaints about reasonably perceived violations of some public policy.

Fifth, make certain that personnel decisions have nothing to with protected classifications (e.g., age, race, gender, religion) and carefully analyze how decisions may impact protected classes of employees.

Just as there presently is no medicine that is sure to eradicate the current pandemic, there is no one-size-fits-all regimen that will completely wipeout such employment claims.  Even these steps cannot completely immunize employers against all these types of lawsuits, yet failing to adopt such protective measures probably will increase the risk of exposure to these afflictions.

Finally, it seems obvious that getting prompt medical attention may stem the more serious effects of a disease; by the same token, obtaining early legal advice may decrease the incidence or cost of these exorbitant types of lawsuits.

This is a follow up to our previous blog regarding California’s gradual entry into Stage 2 of the State’s re-opening plan – termed the “Resilience Roadmap.”  As Governor Newsom announced on Tuesday, May 13, 2020, counties are able to, and are, submitting their attestations to the State to speed up the reopening of certain businesses within their counties.  As such, the gradual reopening of businesses in Stage 2 is a fluid and rapidly evolving process driven not only by the State’s decisions on what businesses can and cannot reopen (on a modified basis) at this time, but also on what counties are doing to help move the process along for their businesses.  However, it is important to note, that the State has made very clear that if counties have more restrictive shelter-in-place orders in place, they may continue to enforce them even if the State’s order is modified to reduce certain restrictions.

The evolving re-opening plan around the State is being regularly updated on the State’s website.  Because the updates are happening in real time, it is important for businesses to regularly check the California Department of Public Health’s website to determine the current status of the State and county orders that apply to their business location(s). The website can be found here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Local-Variance-Attestations.aspx

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and your family good health during these challenging times. If we can assist you with your employment law needs, please reach out to any one of us.

The EEOC has updated its COVID-19 Guidance once again by adding a number of new FAQs to address issues related to the anticipated re-entry into the workplace.  The new FAQs discuss things like: an employer’s right to screen employees before entering the workplace to avoid a “direct threat” to the health and safety of employees; documentation to support an employee’s request for an accommodation; and “undue hardship” considerations when denying an accommodation based on the impact of COVID-19 on the business.  Below is a list of the updated/new FAQs.  The complete EEOC’s Guidance and FAQs can be found here.

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? (4/23/20)

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

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On May 7, 2020, Governor Newsom announced the plan to gradually move into Stage 2 of the State’s Re-opening Plan beginning May 8, 2020.  In addition to the Governor’s announcement in his press conference, the California Department of Public Health issued industry-specific guidance and checklists for phased reopening under the State’s “Resilience Roadmap.”

Under the current State Shelter-in-Place Order, only essential businesses and workplaces are permitted to be open.  However, the State says that as of May 8, 2020, the following businesses can open with modifications:

• Curbside retail, including but not limited to: Bookstores, jewelry stores, toy stores, clothing stores, shoe stores, home and furnishing stores, sporting goods stores, antique stores, music stores, florists. Note: this will be phased in, starting first with curbside pickup and delivery only until further notice.
• Supply chains supporting the above businesses, in manufacturing and logistics sectors.

Although there is no specific date provided yet, the State says that the following businesses can open later in Stage 2:

• Destination retail, including shopping malls and swap meets.
• Personal services, limited to: car washes, pet grooming, tanning facilities, and landscape gardening.
• Office-based businesses (telework remains strongly encouraged).
• Dine-in restaurants (other facility amenities, like bars or gaming areas, are not permitted).
• Schools and childcare facilities.
• Outdoor museums and open gallery spaces.

Regardless of when a business is permitted to open (with modifications), the State is requiring all facilities to first perform a detailed risk assessment and implement a site-specific protection plan.

Finally, Governor Newsom and the Department of Public Health recognize that some communities may be able to move through Stage 2 faster and thus are implementing a system in which the counties can certify that they have made greater progress in meeting readiness criteria established by the California Department of Public Health. More information about this State-county system is expected to be released by the State on May 12, 2020.

For more information about the latest developments on the phased-reopening of California via the State’s Resilience Roadmap, go to https://covid19.ca.gov/roadmap/#guidance.

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and your family good health during these unsettling times.  If we can assist you in any of your employment law needs, feel free to reach out to one of us.

Recent news reports, like this one from the Los Angeles Times, indicate that Congress is hotly debating a proposed law to immunize employers from lawsuits alleging that their workers contracted COVID-19 illness on the job.  While business owners in California may suffer headaches or congestion from other types of lawsuits related to COVID-19 in the workplace, exposure to employee lawsuits of this kind is probably not a feverish worry.

That is because, with very few exceptions, California employees who suffer a work-related injury or illness cannot sue their employer in civil court.  Instead, such employees must pursue relief through a workers-compensation claim.

Even though there probably won’t be a rash of employee lawsuits related to COVID-19, California employers should anticipate an increase in workers-compensation claims related to that coronavirus.  Such claims typically would assert that an employee was exposed to the contagion on the job and became ill, unable to work, and in need of medical attention and treatment.

Indeed, California Gov. Gavin Newsom this week mandated a presumption that an employee’s COVID-19-related illness is work-related under certain circumstances.  In Executive Order N-62-20, signed on May 6, 2020, Gov. Newsom directed that “[a]ny COVID-19-related illness of an employee shall be presumed to arise out of … the employment for purposes of awarding workers’ compensation benefits if [specified] requirements are satisfied.”

Under that executive order, the presumption only arises if the employee tested positive for, or was diagnosed by a qualified physician as having, COVID-19 within 14 days after performing work directed by the employer at the employee’s place of employment.  The presumption does not arise if the employee worked from home during that timeframe, or if he or she was otherwise not on the job on or after March 19, 2020.

Just because such a presumption arises, that does not mean the source of the employee’s infection is beyond dispute.  On the contrary the executive order confirms that the presumption “is disputable and may be controverted by other evidence.”  Moreover, if “an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits [must] be used and exhausted before any [workers-compensation] temporary disability benefits … are due and payable.”

Of course, employees who file such claims may also allege that their illness was caused by the employer’s serious and willful misconduct.  If a worker were to succeed on such a claim, it could result in the “amount of compensation otherwise recoverable [being] increased [by] one-half” under section 4553 of the California Labor Code.

To prevail on such a claim, the infected employee would have to prove that the employer maliciously (not just negligently) engaged in such misconduct.  Simply opening up for business after the government said it was ok to do so, by itself, almost surely wouldn’t amount to serious and willful misconduct – but opening sooner than that might.  Employers also may face greater risk of liability under such a claim if they maliciously (not just carelessly) fail to provide necessary protective gear or enforce social-distancing or sanitary guidelines.

Therefore, absent some unanticipated development, any presumed action that Congress may take in passing a federal law to shield employers from such lawsuits probably won’t have much of an impact in the Golden State.  Still, employers here should be mindful of the new presumption that an employee’s COVID-19 infection may be an industrial illness covered by workers-compensation laws.  To inoculate against potential claims that a COVID-19 infection was caused by serious and willful misconduct, California employers should consult with competent legal counsel to prepare for reopening their business in the coming weeks and months.

On May 3, 2020, the SBA updated its FAQs regarding the Paycheck Protection Program (“PPP”) under the CARES Act.  Among other things, the updated FAQs finally addressed this issue:  What happens to an employer’s ability to have its PPP loan forgiven if employees refuse to return from layoff and thus an employer cannot meet the required full-time employee ratio in connection with the required 75% expenditure of loan proceeds on “payroll costs” during the 8-week Coverage Period?

The SBA’s FAQ No. 40 provides expressly:

40. Question: Will a borrower’s PPP loan forgiveness amount (pursuant to section 1106 of the CARES Act and SBA’s implementing rules and guidance) be reduced if the borrower laid off an employee, offered to rehire the same employee, but the employee declined the offer?

Answer: No. As an exercise of the Administrator’s and the Secretary’s authority under Section 1106(d)(6) of the CARES Act to prescribe regulations granting de minimis exemptions from the Act’s limits on loan forgiveness, SBA and Treasury intend to issue an interim final rule excluding laid-off employees whom the borrower offered to rehire (for the same salary/wages and same number of hours) from the CARES Act’s loan forgiveness reduction calculation. The interim final rule will specify that, to qualify for this exception, the borrower must have made a good faith, written offer of rehire, and the employee’s rejection of that offer must be documented by the borrower. Employees and employers should be aware that employees who reject offers of re-employment may forfeit eligibility for continued unemployment compensation.

While the SBA has not yet finalized their rules, this is good news for those employers who were lucky enough to obtain their PPP loan during the first round of government funding but who have experienced a number of employees who refuse to return to work.  Employers in this situation are cautioned, however, to be sure that the written offer of rehire (or recall to a furloughed employee) is clearly documented, that they can prove the employee received the written offer, and that they have documentation of the employee’s decline of the offer.  This documentation will be needed when applying for loan forgiveness at a future date.

A full copy of the SBA’s May 3, 2020 version of its FAQs regarding the PPP can be obtained at:  https://home.treasury.gov/system/files/136/Paycheck-Protection-Program-Frequently-Asked-Questions.pdf

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and yours good health during this very unsettling time.  If we can assist you in any of your employment law needs, feel free to reach out to one of us.