Episode 181: Trending Topics on the Labor Law Helpline: Remote Work Expense Reimbursements, Pet Bereavement Leave, and More

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, the Labor Law Helpline manager and Employment Law Council with the California Chamber of Commerce. Hello listeners. Well, it's been a busy year so far for many of us. We've seen a lot of new court decisions and new regulations on top of, of course, all the new laws we got used to at the beginning of the year. But for most of the year, we're always kept busy managing our workplaces with rules that have already been in place for some time. With that in mind, I thought it was a good time to check in with some of the issues that have been perplexing our members and employers throughout the year thus far. So to discuss the hot topics that we've been discussing on the Cal Chamber Labor Law Helpline recently, we welcome back Ellen Savage, one of Cal Chamber's excellent employment law experts. Thanks for joining me today, Ellen.

Always happy to be here, Matt.

Oh, I'm always happy to have you on. These are usually very fun. I'm looking forward to this. So I want to get started with expense reimbursements. You and I have talked about this in the past and it remains a hot topic for us on the helpline due to the pandemic era transition to remote or hybrid remote schedules that has made this really an operational priority for many employers. Something that we need to continue to stay on top of, to not let things slip through the cracks because we just got a major appellate court decision in an expense reimbursement case, TIE versus IBM, involving those government stay at home orders we had way back when in March20 and whether employers were on the hook for expense reimbursements because the government sent everybody home. It wasn't the employer's choice, but the government said everyone's got to stay at home. We're going to spend two weeks. The pandemic will be over after those two weeks. Right, Ellen, Remember those times.

But the case did not turn on the government order, it turned on something else. So Ellen, what happened in this case and generally, what's the broader ramifications for employers out of this case and expense reimbursements going forward?

Well, like you said, Matt, the case was brough by a group of employees who they worked for IBM when the world shut down in March of 2020, again for two weeks, quote unquote, IBM said hey, you guys just go work from home. You can do this. The employees, however, wanted to be reimbursed for stuff like computers and headsets, their phone service, etc. IBM said no now, California's Labor Code, Section 2802, written long before you and I were probably even born, Matt, long before there was an Internet and Work from Home says we have to reimburse our employees for necessary expenses. But IBM, like you said, said we didn't make the employees work from home. The California governor did. But a couple weeks ago, the California Court of Appeals disagreed. And they said it's a public policy of the State of California that businesses can't pass business expenses onto their employees. The court said the question isn't about who caused the expenses, only whether the employees, in fact, had business expenses in the direct discharge of their job duties or basically doing something that their employer told them to do. In this case, the court said the answer was yes, the employees were working at home because their employer told them to, even though the government told IBM to do it. And so IBM was, in fact on the hook for the expenses. Now, on the surface, having a public policy like what the court said that says, hey, employees shouldn't have to spend money to do their job, that seems like it makes sense, not making employees foot the bill for things that are required to do their job. But as we lawyers like to say, it's a slippery slope. I mean, how far does this remote work expense thing go? Like, all right, Matt, it's 104 here today in Sacramento. Do you guys have to pay my air conditioning bills? Because if I were downtown, my AC would not be running like it is right now. What about my coffee? I work downtown. There's coffee available downtown. But if I work at home, I got to buy my own Starbucks. And that breakfast blend is getting expensive these days at the grocery store. And what about. I've actually been asked about this and kind of an extension of the coffee discussion. What about my toilet paper? That stuff's expensive, too, and I got to buy more of that if I'm working at home. I actually had a member ask me about that. What about the part of my mortgage that covers the square footage of my home office? It's a really slippery slope, and I'm not sure what employers will have to continue going forward to pay for and even extending this for people that aren't working at home. Let's say you have a company policy that says I have to wear professional business attire. Do you have to pay my dry cleaning bills, Matt?

Yeah, that's a really good question. And I think all those questions that you raise are really good. And where I've come from with the members on this, because as you said, the statute was written long ago. The courts have interpreted really broadly is, is this expense necessary for the discharge of their duties or at the direction of their employer?

Right.

With the IBM case that we talked about, they needed the headset, they needed the Internet to actually do their job. Now, of course, you have the public policy, like you said with you won't pass along business expenses. But are those things that you mentioned there about the coffee and the toilet paper there, is that passing on costs of doing business kind of thing? I think it's an open question. Fortunately, or maybe unfortunately for us, I think the courts are still mulling those over and we might actually get decisions on that down the road. But for me and for our members, and I think you and I talk about this all the time, it's what's the necessary expense? And is it in the discharge of their duties? Is it related to what they're doing for their job? But as you see in this case, you got to be careful because most cases you see out there with expense reimbursements, they're broad and a lot of times they come down in favor of the employees. So, you know, be careful with that. In the same vein, the case was interesting for me because we get this question separately on the helpline. A lot is okay, we understand it's a remote or it's a hybrid remote arrangement. And when we tell them to go home and we tell them to go do work at home, okay, great. Now we've got the IBM case that says we've got to pay for that stuff that's related to the discharge of their duties. But what about that situation where employees have the option? Right, so you're allowed to work from home if you want to, but the office is available for you. We're not making you work at home. What do you think about that, Ellen?

So I think that one we have a little bit of a stronger argument that maybe expenses don't need to be paid by the employer, because if it's truly the employee's choice to work from home, it's not necessary, then maybe the logic is different. And I try to think about this using, like pre pandemic times. I know that seems like forever ago, but let's use an example that doesn't include remote work, and we'll see where we come to. So let's say, Matt, you send me on a business trip and you reserve me a room at the Holiday Inn. It's right next to the convention center. But I decide that I, in fact want to stay in the penthouse suite at The Ritz Carlton. So I cancel the Holiday Inn, you know, reservation book myself the penthouse suite every night. For dinner, I order steak and lobster from room service, $80 glasses of wine. Does the employer have to pay for that? Just because I chose something that costs more money? And by the way, if you agree that they do, I think I'd like to start going on more business trips.

Yeah, you and me both, Ellen.

But let's say another example employee who normally works in the office just grabs their laptop and she wants to go to Starbucks for just a little change of scenery. Do we have to pay for the $7 double Frappuccino extra shot, whatever, caramel latte? I don't know that we have to because that's the employee's choice to do something above and beyond what's required for work. So in terms of these work from home scenarios, if I would just prefer to work at home in my Benny slippers, I don't know that I have a strong argument that you have to pay for those expenses as long as the employer is very crystal clear. We have a desk for you, we have a computer for you. Everything is there for you. And you're simply choosing to work at home instead. We'll see where the courts go with this.

Yeah, I think that was a great analysis, Ellen. So let's shift gears and move to another topic that came up from the US Supreme Court, the area of religious accommodations. Now, the case that we got out of the Supreme Court, Grof vs DeJoy, was discussing this issue of what level of undue hardship does there need to be for an employer to refuse to provide a reasonable accommodation under our religious protection rules? While that decision updated federal law under Title VII and made it harder for employers to use undue hardship there, it's already been really hard for them to use it here in California. Right, Ellen?

Yeah, it's not surprising that we're ahead of the curve on this one, Matt. The new case under federal law, basically what the court said is that Title VII requires an employer that denies a religious accommodation to show not just that the accommodation would have been an undue hardship, but now under this new case, the employer has to show that there are substantial, and that's the key word, substantial, increased costs in relation to the conduct of the particular business. Now, the word substantial is important in this new federal case, but like you said, we're kind of basically in California, where we've been all along. This case doesn't have huge impact here. What employers really should be looking at is in California now Really, in the rest of the country, is what religious accommodation is being requested. We need to say, is it unduly costly or burdensome? And we need to look at things like the company's overall size. Is this a small mom and pop shop or is this, you know, a giant company? Well, like IBM, the company we talked about earlier, how, you know, how many employees does it have, what kind of facilities, what's its budget? And then we're going to compare that with the nature and the cost of the accommodation that the employee is asking for. We're going to look at did the employee give us reasonable notice for the accommodation and were there any other reasonable ways to accommodate? So it's going to be kind of a balancing test.

Yeah. And I think that's excellent because what I talked to with.

With clients and members here at the Chamber is the law is already assuming that the fact that you have to provide an accommodation is in itself a hardship. Right. It's something different that the law is requiring us to do. So that's a hardship. So when I get the question and the employer is like, well, can I just say this is a hardship on us and we don't have to do it, the answer, of course, is no, because, yeah, you have to give an accommodation, it is a hardship. But what we're looking at is undue hardship. That means it's much more difficult for you to provide this accommodation based on all those factors that you said. So then, in the context of religious accommodation, the questions that you and I get pretty frequently about this relates to specific accommodations. And I know you recently received an interesting question from one of our members about religious accommodation and the need for time off. And as this is a popular topic for us, can you walk us through what employers need to look out for when they actually receive the request and how to respond to that?

Yeah. So, typical situation for a religious time off request would be maybe a Jewish employee who says, I need to leave early on Fridays because my Sabbath starts at sundown. And we know in the winter sundown is surprisingly early, so maybe I do need to leave before 5 to get home. So that maybe means you got to pay another employee some overtime for a few hours each week to cover the end of that shift. And unless you can show that it's a substantial extra cost compared to all of those other factors we just talked about, you're probably going to have to go ahead and pay that overtime. When it comes to the cost question and whether it's a substantial extra cost, I actually got a really interesting Question. Yesterday, one of our members asked whether, when the employee needs an accommodation, are we considering only the revenue and the cost related to the small department where the employee works, or are we looking at the revenue of the whole company in comparison to the cost of the accommodation? And I bet most of our listeners knowing California law, can guess the answer to that one. And that is, we're not just looking at the one department. We're going to look at the whole company, the whole company's bottom line. Now, sometimes members want to question whether the employee's request is really based on a religious belief. And the best answer I can give you here, Matt, is tread very carefully if you're going to go there. We heard a lot of this when employees said they couldn't get vaccinated based on their religious beliefs. And my members would say, look, I'm the same religion as this employee. I attend their church with them. I sit next to them every Sunday, and that's not what we believe. But in the eyes of the law, religion is kind of a personal thing. So questioning someone's religion is really, really risky. I tell people if someone says their religion is to go out into the forest and pray to the squirrel gods, I'm going to say, okay, unless I talk to my legal counsel first. It's just really risky. One of the questions that I got this week dealt with somebody who said that their religious belief prevented them from putting their children in childcare, so they wanted an adjustment to their schedule. I don't know of any religion that does that, but again, like the praying to the squirrels, we typically aren't going to question it, and we're going to talk about whether we can accommodate.

Yeah. And while I don't think religious accommodations get nearly as much attention as maybe our disability accommodations and the rules around that, they're really quite similar. And as you say, they're really quite dangerous in terms of liability risks. There's a lot of steps to this where if you, as the employer, don't want to give the employee what they're asking for, you're running this really through counsel. Because if there's a misstep at any one point of this process, there's several causes of action and claims that they can bring out of these two distinct issues, and you run the risk of just, you know, losing and losing pretty bad with that. So when you're dealing with accommodations in those contexts and you're working with questionable issues, get counsel on the phone and see if it's really that questionable or if we're Moving on, you know, and providing it. Like you said, Ellen, let's move to a different accommodation, lactation accommodation. So this is something that isn't terribly new here in California. However, the laws have been updated more recently than, say, labor code section 2802. Of course, what are our obligations around this? Because what I find interesting about lactation accommodation these days is it's kind of in conjunction with this move to remotes or hybrid remote or the situation where even if we're no longer remote at any point and we're all back in the office, we were at home at some point during the pandemic for the most part, and we adopted these kind of habits and things that we did with this. And so lactation accommodation is one of those, you know, kind of private issues that employees go through, but they have these rights in the office place if that's something that they need to do when we bring them back in. So, Ellen, walk us through what California employers really need to do with this.

Well, I mean, the very basics of lactation accommodation in California are providing time and a place for lactation as well as having a policy. So basically, all employers, no matter how small, have to provide employees with a reasonable amount of break time that can be in addition to their paid break time. And if they need time in addition to their paid breaks, that time does not have to be paid. The additional time, employers have to provide a private place that's near the employee's work area. And no, it cannot be a bathroom. It has to be safe. It has to be clean. It has to be free of toxic or hazardous materials. This means we're not going to use the cleaning supply closet. It has to have a surface to put the breast pump and other personal items. It has to have seating. It has to have some kind of access to power for the breast pump, whether that's a plug or some type of adapter. You also have to have, not necessarily in that room, but somewhere nearby, a sink that has running water and a fridge. Now, that could just be your break room. If there's a sink with running water and a fridge in the break room, that's fine. It doesn't have to be a separate sink or fridge for lactation accommodation. And if you can't provide a refrigerator, you're out in the artichoke fields. You can supply a cooler for your employees. The other thing you have to have is a lactation accommodation policy that has to go either in your employee handbook or some other kind of policy manual. And you have to give the policy to all your employees. I don't care what gender they are when they're hired, and again, if they ask about or request any kind of parental leave. So that's kind of the basics of lactation accommodation.

Okay, great, Ellen. I think that was perfect in terms of really highlighting this is a need for all of our employers. One thing I want to add on to what you said is a question that we often get is do we have to have a dedicated room? And of course the answer is no, you don't have to have a dedicated room, but you need to have the space available when they have the need for it. So if you're not using a dedicated room, it needs to become a dedicated room as soon as the person has the need for it. So another interesting question that you and I have received on the helpline in the past relates to equipment. You said the lactation room needs to have a surface to place a breast pump or other personal items. A lot of people are familiar with this, but technology changes. And so we've had a couple situations where the employees are actually using wearable breast pumps. Are there any issues or changes to lactation combination rules around that?

So that's a good question, and I don't know that there's a solid answer to it. It's been a really long time since I've been in the world of babies. So when I got my first question about a wearable breast pump, I'm literally googling because I honestly don't know what this is. So like you said, it's a new technology. It's hands free. There's nothing to set on a surface in a lactation room. It's wireless. You can wear it under your clothes at work. So my caller wanted to know what the lactation accommodation laws say about these wearable breast pumps. And the ANSW answer is nothing. Nothing at all. The lactation accommodation laws don't even address them. But if the employee doesn't need a private place anymore or extra break time, she just wants to wear the wearable pumps while she's working, that's fine, but keep in mind you still have to have available a lactation space. The privacy, the refrigerator, all those things don't go away. Another member actually wanted to know what to do. She was afraid other employees might be uncomfortable with the idea that their co worker at the next desk was using wearable breast pumps. And so what she wanted to know is, could I tell the employee she can't use those and she has to go to the lactation room instead? So the lactation law doesn't say anything specific about it, but I'm going to say that if the employee doesn't need to go pump in the lactation room, I don't think you want to require it. That just seems like the absolute opposite of what this law was designed to do. The airlines now, actually, I learned recently, are allowing flight attendants to actually use those wearable pumps while they're working so they can breastfeed their babies, even though they work long hours. And obviously there aren't a lot of private places available to pump breast milk on most airlines. So I think the answer is no, we're not going to tell the employee they have to go into the lactation room.

Excellent. All right, Ellen. Well, we're here near the end, and it really wouldn't be a podcast with you unless we got into the weeds on a weird subject. So let's talk about protected leaves of absence related to pets now, at least for my part, Ellen, my dogs are tried and true members of my family, and if something happens to them, it feels a lot like something has happened to an actual human family member as well. And so I would like to have the opportunity to go take care of them. You know, if they pass away, I'd like the opportunity to go have to deal with that. If they're sick and they need to go to a vet, or if they just need some care while they're at home, I'd like to have the ability to do that. So you had a question recently about pet bereavement leave. Kind of what I just alluded to. Do we have obligations to provide pet bereavement leave under our new mandatory bereavement law that went into effect this year?

Yeah, I had to call her. Whose employee wanted to use pet bereavement leave because her cat, she'd had for, like, 15 years died. So bereavement leave as of January 1st of this year is available for certain employees for the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic parent, sorry, domestic partner, or a parent in law. Many of our members actually are surprised to learn that it doesn't include a designated person, like the SIFRA and sick law does. But to answer your question directly, the new law definitely does not include a pet. Even Matt, if the pet, like yours, is like a child to you. Keep in mind, though, that an employee is too upset to come to work. They've been up half the night crying because Fluffy died. They've got a splitting headache as a result. Honestly, they're probably just going to call in sick and if they have protected sick leave in their bank, they're going to use that.

I think that's a good point and actually dovetails into my last question for you. What about paid sick leave or even CFRA fmla? Because you said paid sick leave and CFRA have the designated person. Can I designate my dog as somebody who I need to provide care for under either of those two types of leaves?

Hmm. That would be interesting. You should try that. Call HR and see what happens. But I'm gonna tell you that they have the legal right to say no.

Much like the bereavement leave we just talked about. Cfra, FMLA and California's paid sick leave law, those don't cover pets. So if your puppy needs surgery, Matt, unfortunately you would have to use a vacation day. There's just no legal protection for that time off. Unless there's one exception if you're in Emeryville. Their local sick leave ordinance allows the use of sick leave for certain pets. It's not going to be yours, Matt, but it is going to be for the aid or care for a guide dog, a signal dog, or a service dog that is for the employee or even one of the employees covered family members. So that's Emeryville only.

That's fascinating. There's always an exception to the rule in California. It seems like that. Well, Ellen, as always, this was a really fun hot topics on the helpline discussion with you. So thank you again very much for joining me today.

Absolutely. Always glad to be here, Matt.

And thank you listeners for joining yet another discussion here on the workplace. Please comment, share and subscribe to Cal Chamber's podcast by visiting calchamber.com it.