Episode 73: COVID-19: Monitoring Off-Duty Workers

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's general counsel and executive vice president. And back on the podcast today is Jennifer Shah of the Shah Law Group, who is here to help us delve into a very tricky subject. Whether employers can monitor what employees are doing when they are not at work as a means of reducing COVID 19 spread. Not an easy subject. Hey, Jen, how are you?

I'm well, thank you. Erica, how are you today?

Doing well, thank you. And thank you again for joining us on what is becoming a very popular question that we're getting on the labor law helpline about what employees are doing off duty and whether they can either regulate it or ask about it when the employees come back to work. Related to COVID 19.

It's really interesting because people are really hesitating to take any steps right now.

Right.

I mean, I think the world feels so unsettled for so many reasons that employers are hesitating about just doing about anything. So this is an issue that has come up for several of our clients.

Well, and you know, I'm really empathetic to the business community right now. I mean, for one, we had a number of businesses that simply had to shut down because of the COVID 19 pandemic and shelter in place orders. We had others who were able to pivot to a remote work. And now we have all of the businesses collectively getting the green light or most of them getting the green light to open. Yet in order to open, there's all of these guidelines that they must follow.

One of which is making sure that you are reducing the spread of COVID 19 and in doing so, either encouraging employees to do symptom checks, some employers might decide to do temperature checks. And of course there's this issue of, well, I'm not worried about someone getting it in the office so much as they come in contact with someone over the weekend and then bring it into the office.

That's exactly right. And so that is the idea of, like you said, the temperature check, the symptom check, that sort of thing. The problem is, of course, there are a number of legal issues that are associated with these kinds of practices. And employers really need to be super clear what they're doing, how they're doing it, etc. Because it can be a huge liability. And that's one of the things that I think a lot of employers are realizing right now is the lawsuits are going to come out of the woodwork over the next several months because there are so many new things that Employers are trying to. We don't have consistent guidance federally and from a state perspective or even locally. So there's a lot going on.

So Jennifer, I don't know if you've had any of these questions, but we've certainly received some on the labor law helpline. And these questions actually started before even the shelter in place.

Order.

I know of an employee who's getting on an airplane and traveling. Fill in the blank. Can we require them to self quarantine before they come back to the office? Can we make them stay home and not come in?

Well, and here's what's interesting. You can, but you have to have a reasonable belief that because of what the employee is doing, they are posing a risk to the workplace. Because that's the whole reason why we can do things with COVID 19 that we can't do with a regular medical condition. And all of the rules have sort of been turned on their head in terms of what employers can do in this area. So for example, anyone is taking a common carrier, right? So they're going to take a plane, a bus, a taxi, an Uber. You can decide, look, you're a common carrier. And so we're going to make sure that you are getting tested before you come back to work. We don't care if you flew one place or you know, that was 12 hours away or you flew one place that was 30 minutes away. We're just not going to let you come back to work unless we know what's going on. So that's one issue. The other thing that comes up, of course, is that employers are trying to meet their obligation under OSHA to provide a safe workplace. And so they're trying to figure out, okay, well how can I do this if I can't even question where people were or what they were doing or how they were behaving, how they got somewhere. So there are questions that we can ask. It's just that we have to do it in a really specific way.

What about the issue of pay too? So if you have a policy that says if you've traveled outside of the state or if you have traveled outside of the country, as things start to open up, we are going to require you to self quarantine for 14 days. Are there pay obligations that could arise with that type of policy?

There definitely are. Anytime you're dealing with a non exempt employee, you're going to have to pay them for that time. And you're also, if you ask them to get a test, for example, example, you're going to be paying for that test. So definitely there's a lot going on here and I think a lot of employers feel like, oh, well, I'm just going to have them check their symptoms or I'm going to have them get a test. It's not a big deal. I just want to make sure that they're healthy. Okay, that's all perfect. You do have an obligation under osha. You do have to do that, but you are imposing a burden and obligation on the employee. So for a non exempt employee, you're going to have to pay for that time, which very well could run into overtime. It could create an issue with rest breaks and meal periods. Also, remember, you ask the person to take the test or fill out the symptom checklist and then they fail the test. Right. So maybe you say take your temperature at home and report if your temperature is more than 100.4, which is what we see when we're doing these things from the CDC. They say, look, if it's more than 100.4, you have a basis for not having that person come to work. Well, now they've started working by taking that test, you owe them reporting time, pay, you owe them half of their scheduled shift for that day, minimum of two hours, maximum of four hours. So the obligations go on and on in this area.

Yeah. And I don't want, of course, listeners to go, oh my God, we're damned if we do, we're damned if we don't, or oh my gosh, this is so frustrating. How do I comply? I think we're talking about those more extreme cases and those situations where employers are being hypervigilant in trying to do whatever they can to control the spread of COVID 19 in their office spaces. Recognizing that there are a number of safeguards that an employer can put into place that will either satisfy the obligation and the outcome of preventing safe the spread of COVID 19 with the workplace. One thing, Jennifer, as far as deciding who would be tested and who would not be tested, are there any legal issues with that? And where I'm going with this is, you know, let's say that the employer has a policy of if you've been on an airplane, and I don't care where you're going, if you've been on an airplane, you need to be tested for COVID 19 before you were able to go into the workplace. And an employee saying, well, wait a second, if I go to the mall or to a department store that's now open or to a big box store, I am likely to be exposed just as much as if I go onto a plane. Why is this different and is there a difference?

Well, and I think that's a good question. Part of what employers want is this sort of template, one size fits all approach. And actually, unfortunately we've got to look at each case separately. And that's something that I think can be challenging, is that we have to have some folks in the workplace who can assess, assess these issues and help the employer figure out what exactly needs to be done in a particular situation. So for example, management may come and say we should do X. And then HR is going to need to take a step back and say, well, wait a minute, we're not sure if X is going to work here, let's talk about that. So definitely when you change the facts, you change the obligations and responsibilities.

Okay, that's very helpful because I know that, I'm sure those are many of the issues that are facing a lot of employers as they're trying to implement some of their policies and procedures related to the health and safety of their workplace and preventing the spread of COVID 19. Jennifer, I know there's a lot of guidelines out there. There's so much information that employers are having to sift through. When we talk about maintaining the health and safety of the workplace. You know, not just in general, but as it relates to COVID 19. Where are some of the first places employers should turn to to look for the information in the that's out there?

Well, there are a number of different websites, including ours, where we have all of the links. Cal Chamber has the same thing. Generally the best place is going to be the CDC website and then the California Governor. Of course, Governor Newsom has worked with the Department of Public Health in Cal, OSHA to issue these guidelines called the Resilience Roadmap. And the Resilience Roadmap addresses for every industry what you need to do to make sure your employees are safe, what steps you need to take, whether they were sent home because you were a non essential business and they haven't been working, or you're an essential business but you're bringing people back to work. So it's really important for people to look at that resilience roadmap because that is something that a lot of people are forgetting about and it spells out really clearly what everyone needs to do.

And I want to just continue on with that line of discussion that I know with the CDC guidelines. The guidelines are continuing to evolve and it's something that I would strongly recommend employers to continue to go back to the CDC website to see if there's been updates. There's so much information now, and as the health officials and health authorities learn more about this virus, they are continually to update the information and guidelines out there.

That's exactly right. And it's really important to keep that in mind.

Well, great. Jen, thank you so much for being a guest again on today's podcast. We always appreciate your insight. For all of the employers out there who are trying to figure out what to do and work their way through all of this as well, thank you for joining us on the workplace. Please stay up to date on the most critical issues for employers and comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.