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Employers Beware: Avoiding Retaliation Claims in COVID-19 Era

Your employees may be “essential,” but do they have to work? The answer is, of course, it depends.

More and more workers are expected to report to work despite ongoing concerns regarding COVID-19. But do they have to? The short answer is likely yes, however, if employees fall into specific risk categories identified by governmental agencies they may be able to refuse to go into work, and have a number of benefits available to them while they are away. But if an employee does not fall into a protected category, then the refusal to work operates as a resignation or job abandonment. While this issue has largely been limited to essential workers, it is beginning to impact a broadening swath of the workforce as industries begin to re-open.

This alert addresses the exceptions to the general rule that employees have to return to work, and offers suggestions as to how employers can manage some common pitfalls.

Possible Exceptions

California already offers paid family leave (in relevant part) to care for a seriously ill family member, and paid sick leave for the care or treatment of an existing health condition or preventative care for an employee or an employee’s family member. As applied to the current crisis, the “preventative care” provision is triggered when:

  • The employee has been exposed or suspects exposure to COVID-19;
  • The employee is 65 years of age or older;
  • The employee has chronic medical conditions, such as heart disease, lung disease or diabetes; or
  • The employee is caring for a family member who has been exposed or suspects exposure to COVID-19, is older than 65-years-of-age, has a chronic medical condition, or is caring for a child whose school has closed because of the COVID-19 crisis.

Notably, both essential and non-essential workers who cannot work from home can use any available paid sick leave for time off work for “preventative care.”

Additionally, in response to the current crisis, the federal government enacted the FFCRA. The FFCRA offers emergency paid sick leave if:

  1. the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. the employee is caring for an individual who is subject to an order as described in (1) or has been advised as described in (2); the employee is caring for a son or daughter whose school or place of care has been closed, or whose child care provider is unavailable for reasons related to COVID-19; or
  5. the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

The FFCRA offers emergency paid family and medical leave if the employee is unable to work (or telework) due to a need to care for a child whose school or place of care has been closed or whose child care provider is unavailable for reasons related to COVID-19. Importantly, the new federal paid sick leave under the FFCRA is in addition to paid sick leave that California state law or local ordinances require, or that an employer provides under its policies.

Additionally, the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act require employers to engage in an interactive process to determine whether reasonable accommodations can be provided to an employee with a disability. In California, disabilities are broadly defined as conditions that limit a major life activity, including physical and mental disabilities, as well as medication conditions.

Employers may face wrongful termination claims if they terminate employees who take leave for any of the aforementioned reasons.

Additionally, we anticipate some workers will seek safe haven in the Occupational Safety and Health Act (OSH Act). The general duty clause in the OSH Act requires employers to guarantee their employees a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  Thus, the OSH Act grants workers the right to refuse to work if they believe conditions in their workplace could cause death or other serious imminent harm. Note, though, that the general duty clause sets a high bar; so long as employers implement social distancing and disinfecting guidelines consistent with CDC recommendations, employees likely will not be able to rely on the general duty clause to justify their refusal to return to work.

Employers – Best Practices

California law protects workers from retaliation when they choose not to work if doing so would violate (1) a local, state or federal law, or (2) a safety or health standard. Thus, employers need to be nimble and stay apprised of public health guidance as well as California and federal laws. Consistent with CDC advisories, employers should implement flexible policies to permit employees to stay home where possible, and when necessary if the employee or employee’s family member is sick, or the employee needs to take care of children due to school and child care closures.

Also, employers should closely and individually evaluate employee concerns regarding returning to work in light of applicable public health guidance as well as California and federal laws. Finally, employers should implement an Injury and Illness Prevention Program (IIPP) geared specifically toward preventing the spread of COVID-19. This is not a new obligation, but one that needs to be tailored to address the current threat from COVID-19.

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