As pandemic-related restrictions on business operations in California begin to subside, employers have been left with unanswered questions about reopening the workplace. On March 4, 2021, the Department of Fair Employment and Housing (DFEH), issued COVID-19 related guidance for employers, which covers topics such as:

• COVID-19 Symptoms or Infections in the Workplace
• Imposing Mandatory COVID-19 Related Policies
• Accommodations for Employees with Disabilities/Vulnerable Populations

Below find a summary of the most significant provisions of the DFEH’s updated guidance for handling COVID-19 related issues in the workplace.

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COVID-19 Symptoms or Infections in the Workplace

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Inquiring About COVID-19 Symptoms

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Under the current guidance, employers may take employees’ temperatures and ask employees if they are experiencing symptoms of COVID-19. Relatedly, employers are entitled to ask why an employee did not report to work if the employer suspects the absence was for a medical reason. Employers are required to keep any and all health information obtained from their employees confidential, including by separating employee medical files from personnel files.

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Displaying Symptoms or Testing Positive for COVID-19 in the Workplace

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If an employee becomes ill with symptoms of COVID-19 and/or tests positive for COVID-19, they should not enter the workplace, and may be sent home by their employer. According to the CDC, “decisions to continue home isolation for workers with COVID-19 and allow them to return to work may follow either a symptom-based, time based, or a test-based strategy.”

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In order to comply with privacy laws, employers must not identify employees who are under quarantine, test positive for COVID-19, or come into contact with the virus by their name. Instead, employers should follow the relevant local, state, or federal requirements when an employee is suspected to have COVID-19, which may include notifying affected employees of a COVID-19 exposure, closing and deep cleaning the worksite, and requiring telework.

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Job-Protected Leave

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On March 19, 2021, Governor Newsom signed Senate Bill 95 (SB 95), which renews and expands California’s COVID-19 related supplemental paid sick leave requirements that expired on December 31, 2020. Read more about the new paid sick leave legislation here.

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Under the California Family Rights Act (CFRA), employees may also be entitled to job-protected leave to care for certain family members or for their own serious health condition. COVID-19 generally qualifies as a serious health condition under the CFRA if it results in inpatient care or continuing treatment or supervision by a health care provider, or if it leads to pneumonia.

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Imposing Mandatory COVID-19 Related Policies

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Testing

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The FEHA allows employers to mandate medical examinations for employees when the examination is “job-related and consistent with business necessity.” Under current guidance from the FEHA, the CDC, and the EEOC, employees may be required to submit to viral testing, not antibody testing, before entering the workplace.

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Vaccination

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In short, as the EEOC indicated in December, employers may impose mandatory vaccination policies. However, any policy or practice that requires employees to receive an FDA-approved COVID-19 vaccination must comply with the Fair Employment and Housing Act. If an employer chooses to implement a mandatory vaccination policy, they must:

• Provide reasonable accommodations for employees with disabilities or sincerely-held religious beliefs or practices,
• Not discriminate against or harass employees or job applicants based on protected characteristics, such as disabilities, perceived disabilities, or religious beliefs, and
• Not retaliate against anyone for engaging in protected activities, such as requesting reasonable accommodations.

Reasonable accommodations might include allowing the employee to work from home, job reassignment or restructuring, or creating procedures and safeguards that would allow the employee to work at the worksite without endangering the employee or others.

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Employers may require proof of vaccination from employees and job applicants, as this is not a disability-related inquiry. However, in order to avoid eliciting disability-related medical information, employers may ask their employees or job applicants to omit other medical information from this documentation.

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Employers that administer their own vaccination programs may ask questions that elicit disability-related information, such as pre-vaccination screening questions, if the inquiries are “job-related and consistent with business necessity.”

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Employers are required to engage in an interactive process with qualifying employees to identify how to provide reasonable accommodations. When an employee is unable to receive the COVID-19 vaccine because of a disability or sincerely-held religious belief or practice, the employee may only be excluded from the workplace if:

• Providing reasonable accommodations to the employee poses an undue hardship on the employer,
• The employee is unable to perform their essential duties, even with reasonable accommodations, or
• The employee cannot perform their duties in a manner that would not endanger their own or others’ health or safety, even with reasonable accommodations.

The FEHA does not require employers to accommodate employees who object to vaccination with an FDA-approved vaccine without a disability-related or sincerely-held religious reason for doing so.

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Personal Protective Equipment

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During the COVID-19 pandemic, employees may be required to wear personal protective equipment, such as face masks, gowns, and gloves, designed to reduce the transmission of COVID-19 in the workplace. Absent undue hardship, employers must provide accommodations, such as non-latex gloves or gowns designed for individuals who use wheelchairs, to employees with disabilities.

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Other Accommodations for Employees with Disabilities/Vulnerable Populations

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As described above, employers are required to reasonably accommodate for disabilities when enforcing vaccination and personal protective equipment requirements, absent undue hardship. Employers may also have to provide reasonable accommodations for employees when an illness related to COVID-19 rises to the level of a disability.

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The CDC distinguishes between medical conditions that increase or might increase an individual’s risk of contracting a severe illness related to COVID-19. Employers must provide reasonable accommodations for employees with the underlying medical conditions specified by the CDC if the condition qualifies as a disability.

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As age is not considered a disability, employers are not required by the DFEH to accommodate for employees who are at a higher risk of contracting severe illness from COVID-19 due to their age. Employers must also not discriminate against older employees by, for example, only allowing employees under age 65 to return to the workplace.

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Resources for California Employers

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As employers and employees collaborate to create policies that mitigate the spread of the COVID-19 pandemic, it is essential that employers keep their employees apprised of their rights to job-protected leave and other protections, and keep their employees’ medical information, elicited through testing or vaccination procedures, or otherwise, confidential.

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Find the DFEH’s full employment information on COVID-19 here.

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Find the CDC’s guidance for businesses and employers responding to COVID-19 here.

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Find guidance from the California Department of Public Health here.

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Find guidance from Cal/OSHA here.

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Find more information about California’s newly extended sick leave laws here.

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If you have questions regarding the application of the DFEH’s updated COVID-19 guidance to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick Maloney, Lisa Von Eschen, Samantha Botros, or Nicholas Grether.

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