Episode 81: COVID-19: What Employers Ask Part 3

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's executive vice president and general counsel. And with me on the podcast today are Cal Chamber employment law experts Matthew Roberts and Bianca Saad. Matt and Bianca, welcome back.

Thanks for having me, Erica.

Happy to be here.

Excellent. Well, as we know, you're both part of our Labor Law Helpline team. And as being part of our Labor Law helpline team, I know that you both spend many hours a week talking to California employers who are facing some serious challenges right now running their businesses in the midst of COVID 19. So today we're going to be discussing a few of the most frequently asked questions or issues that we see employers facing in contacting Cal Chambers Labor Law Helpline to give some context to where we are in time and space. We're looking at the week of July 20th. So we have a lot going on with regards to announcements regarding school closures. We know that in the state of California, in total, positive testing continues to rise. We also know that there's county by county orders that we have to follow. So it is a really trying time right now for business owners trying to keep the lights on, trying to work with employees, ensuring that employees are safe, because as we know, there are requirements that employers must follow with regards to maintaining a healthy and safe working environment. And there are also some specific guidelines that employers need to follow as it relates to COVID 19. So let's talk about some of these issues and I'm going to throw out a couple of the questions and we'll just carry on a conversation as if we were hanging out over lunch, sitting in our favorite restaurant, dreaming about what life was like in 2019. So first of all, let's talk about testing because we get a lot of questions with regards to COVID 19 testing. And I noticed that on the Labor Law helpline, we're starting to see many employers ask if they can require employees to show or present a negative COVID 19 test result as a condition to coming back to work. What do you guys think about that? And can employers require that an employee who was out because of testing positive be required to show a negative test as a condition to come back to work?

Yeah. So that's an interesting one. It's definitely one that I've been seeing a lot recently. And, you know, there isn't any guidance out there that actually allows employers to require an employee to present their COVID 19 negative test results are really their test results in any capacity. We've also seen the question of, well, they're saying that they're positive. Maybe the employer doesn't believe the employee that they think they're just making up that they have Covid or symptoms, and they want to actually see that there's actually a positive test result. So whichever way you're trying to get those test results, there isn't any guidance out there that's allowing employers to impose that requirement. Now, we did see some EEOC guidance that said it is acceptable for employers to ask for a doctor's note as far as returning to work, being fit to return to work. But they also note that as a practical matter, due to the burdens on the health care systems right now, that, that it may not be flexible as far as what kind of documentation. That could be just maybe a form from the location or an email or something with a stamp on it. So that's something that employers should keep in mind.

Okay, great. So there's no requirement that the employee show a negative test. And from what I hear, and I'm not a doctor, sometimes that could take a long time for an employee to clear a COVID test after testing positive when they are no longer symptomatic. And are there resources out there where employees can turn to some guidance as to when it is okay to allow an employee to come back to work?

Yeah, there's a great memo, actually, that was dated June 16, 2020. I did just check today. As of today, it's still up and timely as far as what's out there from the California Department of Public Health. But in this memo, it's really handy, they have a chart that gives guidance for employers as far as determining when it's appropriate for cases and contacts of cases to return to work. So you're looking at it based on whether or not that employee has symptoms, whether or not they have tested positive or neg. And so it's really a time frame, you know, the shorter level they're looking at. You know, three days need to have passed since there's been any symptoms, and a minimum of 10 days needs to have passed since the date of their, you know, first COVID 19 test or from the time that they've had symptoms. So depending on what the particular scenario is, an employer can use that as guidance. And of course, even with the state guidance, they're also reminding employers to always be checking back, not only with the CDC guidance, but in addition to the local health departments, because again, some of the local health orders and guidance may differ. They may be more stringent than what the state requires.

And for our listeners on Cal Chambers Coronavirus resource page, we do have this June 16th memo from the California Department of Public Health posted, as well as references to the CDC guidelines as well that pretty much mirror Californians as reflected on the June 16 memo as far as guidance for employers on when an employee can come back to the workplace. So let's move on to another question. Same same, but a little bit different. We're hearing a lot from our employers about employees who are deciding not to come in because they're self quarantining. And we know that a lot of employers have a lot of questions. What do we do? Do we allow them not to come in because they're self quarantining? Is this paid? Is this not paid? You know, what are some of the things that employers should be mind about when an employee calls and says I'm self quarantining? And I know this is a pretty loaded question because I know when we get these questions on the helpline we might ask, well why are they self quarantining? What is the reason why? Is it because they've been traveling? Is it because they was contacted by their county local public health department to indicate that they might have been in contact with somebody who tested positive? Matt, why don't you take this question on and talk a little bit about.

How employers can respond to those calls where an employee says I'm self quarantining and I'm not coming into the office.

Yeah, I think you hit that nail right on the head. When we get this question on the helpline, it really does come down to first and foremost trying to understand why the employee is isolating. And the reason behind that is. And you know, we discussed what's known as the FFCRA or the Families First Coronavirus Response act on an earlier podcast when we were talking about school closures. But there's other reasons for which somebody can take emerg paid sick leave under the ffcra. And a lot of them have to do with self isolation orders. Either they're coming from the government or they're coming from their healthcare provider or they're caring for an individual who is subject to one of those two orders. So figuring out why they're self isolating is going to be important to figure out what the employer's obligation is. If for example, we find out that the person says, well my doctor told me I need to self isolate because I was exposed to a COVID 19 positive person either in their household or out and about, then that may trigger eligibility for the emergency paid sick leave, in which case then, you know, the employee gets up to two weeks of paid sick leave that's provided by the employer, which is in addition to any other leave that the employer already provides. And the tricky thing about that is, you know, if the employee tells us that and they make the oral request, that's really all the information we can get in from the employee. You know, we have a document up on Cal Chamber that's a free form for substantiating the leave, but outside of that, we're not getting doctor's notes or, you know, orders or any other documentation like that. So it's really important to figure out first and foremost why they're self isolating. Now, there's only a few eligibility reasons for which somebody can take the emergency paid sick leave. So if we fall outside of that, and let's say an employee just says, you know what, I'm just kind of scared of what's going on around here. I'm just going to kind of self isolate and shelter in place a little bit for a couple of weeks. Well, they're no longer eligible for the SFCRA under those circumstances. And then in which case we need to figure out, you know, is there an underlying health condition or something else that might be in play for as to why they self isolate? Because as the EEOC has indicated, if an employee is not coming into work because they have an underlying health condition that makes them higher risk for serious complications from the disease, we have to engage in the interactive process and possibly provide leave as a reasonable accommodation under those circumstances. And once we're outside of all of those reasons, an employee just says, you know what, I just don't feel like coming into work today. At that point, then it's up to the employer. They have a lot of discretion what to do with that. But there's a lot of information gathering that employers need to go through first before we reach that step.

Yeah, I think we could probably do an entire podcast on that issue on that topic because there's so many different variables as to what's going on. And you know, again, addressing the whole teleworking, because non employee telework, there's so many variables, but I think we've given our listeners at least a good snapshot at how that question would be addressed on our labor law helpline. Let's move on to the face covering mask mandate that the governor issued several weeks ago, because we are getting several questions about what are the employer's obligations for following and adhering to the face covering mandate. We've discussed this before on the podcast, but with all of these changes that are coming about, we still get a lot of questions. Employers saying that their employees won't wear the mask or do we really have to wear it inside? What about meetings? Do they need to be worn all of the time? If you're in a meeting room where social distancing is achievable and it's being followed, then does that face mask still need to be worn? Maybe we can talk just a little bit about the nuts and bolts of that face mask requirement as it pertains to office setting. And let's narrow the scope a little bit to our general workplaces, our indoor offices, because we know that many industries, restaurants, health care, they have specific guidelines that are curtailed to their industry specific situations that in some cases are much more extensive than what applies to the general workplace. So, Bianca, why don't you talk a little bit about the general mask requirement?

Sure, absolutely. So the guidance that's been in place since June 18th does lay out situations where face coverings are required, which also includes just generally inside public places as well as outdoor public spaces where physical distancing isn't possible. And being engaged in work is also one of these areas. So that's whether the employees at the workplace or if they're performing work off site. And there's a number of instances that the guidance details as far as when that face covering needs to be worn. So, for example, if the employee is interacting with another member of the public or if they are, you know, in any room or enclosed area where there are other people that are present and they're unable to physically distance, if you're working in or walking through common areas such as hallways, stairways, elevators, parking facilities, or if you're working any space where food is prepared, these are just some of the specific examples that are given. So basically it is a requirement that employers need to make sure is being followed by their employees. Even before the mandate was issued. And when we were talking about this as far as just from a safety aspect, one of the things that we talked about was that, you know, this should be part of the social distancing and the safety protocols that you are implementing in the workplace when you're bringing employees back. So, you know, this is no different and in fact, it really should just be that much more emphasized. I think now that this is something that is going to be, you know, it's a mandate and it can be enforced through, you know, getting, you know, fines, for example, through Cal, osha Because it was in partner with partnership with Cal osha, this guidance. So it's important that employers are having this requirement in place that they are.

You know, if an employee is resistant to it or if they are claiming that they're. That it's due to a disability, then that's a separate conversation. But there needs to be, first and foremost, the employer would need to ask what is the reason that they are claiming that they cannot wear a mask and then go down that path. And then lastly, I would just add that there are some localities that actually do impose a requirement for employers to provide the face covering. So for example, Sacramento just recently passed a local ordinance that's in place that you requires employers to have certain safety measures. One of those things is that they are providing and enforcing the face covering requirement to make sure that when the employees are on the work site that they do have those face coverings for the circumstances that permit it. Again, when they cannot have that social distancing.

Thank you very much. And I think one of the things that always helps me put this into perspective as well is think of it along the lines of your dress code. You know, most employers have dress code policies that employees are expected to adhere to. The mask mandated requirement can be part of and incorporated into your dress code policy. And as Bianca mentioned, there may be specific situations where an interactive process discussion should be had between the employer and the employee as far as whether some other kind of accommodation needs to be met. But those again are going to be case by case and individualized as we know that we handle all types of reasonable accommodations that come into the workplace. Matt, let's do one more here. I know that we're touching on some really good issues here. Let's be honest with all of ourselves. This is by no means an easy time. And we know that everybody is feeling some level of stress with coping with all of the changes that have come about with COVID 19 changes run the gamut. And we know too that many working families are now going to be faced with the additional pressure of helping their children through distance learning and accommodating their children's needs while also maintaining and performing their workplace duties and jobs. So with mental health being at the forefront of many of our minds, you know, it's becoming an issue for employers as well. And we know that mental health has always been a concern and we know that sometimes it can impact performance in the workplace. What are some of the accommodations that employers need to remember and to make when we have employees who might be impacted by stress in the workplace. And we know when we talk about stress here, stress can take a variety of forms. And oftentimes it does turn into a serious health condition that can trigger some protections under the law.

Yeah. Boy, it is tough times, huh? You know, it is important to remember that, you know, mental health issues can constitute disabilities, as you said, just the same as a physical disability. And that, you know, we may have people who have never had, you know, anything manifest like this before now, having it manifest because of circumstances or people who have had these issues in the past are now exacerbated by what's going on. And so a lot of these issues, as they start to manifest itself in performance issues or excessive calling outs and the things that may give us an idea that we need to accommodate them, need to remember to, of course, engage in the good faith interactive process with the employees and figure out, you know, what is it that the employee needs to help perform their job duties? Are we looking at a modified schedule? Are we looking at possibly temporarily removing some of their more tangential job duties that they just can't perform now, in addition to everything else that are being expected to be performed, do we offer an employee assistance program as an employer? And if we do, you know, providing information to the employees and of course, leave can always be a reasonable accommodation as well, as long as, you know, certified by a medical provider. The EEOC puts out guidance that says, you know, the interactive process still continues the same as it's continued before. COVID 19 but employers need to be a lot more flexible and forgiving in terms of that certification because healthcare providers are more inundated with healthcare matters, that it just may take longer to get the ordinary medical certification that we would normally get. And so during that time, employers still should be flexible, trying to find some arrangements to assist the employee as we get through this. But really it's about being creative. Right. And figuring out what the employee needs and what we can provide to help the employee continue to perform their job.

And, Matt, also a lot of employers do offer employment assistance programs, you know, resources for employees to utilize when they're going through troubled times, which is what we're in right now.

Yeah, I mean, those programs are fantastic. If, you know, you offer one through your employer, provide those services to your employees, constantly remind them that these exist on a periodic basis, of course, and give the employees the opportunity to kind of just share, you know, what difficulties that they're going through. Because as you said, you know, I think everybody's going through them at this point.

Yeah.

And one last thing that I wanted to just highlight when in particular situations where we're all remote, sometimes it's really easy to get disconnected from each other. And one of the things that I know a lot of employers are starting to do is just weekly check ins or daily check ins or utilizing different platforms to bring the workplace together. And for many people, it's that lack of human contact and human interaction that makes things even more challenging for them to perform their job. And so there are ways to alleviate some of that. And you know, even some employers are getting very creative with, you know, virtual lunches, virtual, you know, games, what have you. Where, you know, as you said, being creative can alleviate some of the stresses that are being placed on our employers as we go through this difficult time.

Yeah. And employers shouldn't be afraid that those are, you know, considered micromanaging techniques. Right. I mean, the employers obviously put these things out, these weekly check ins or daily check ins, more so just to see how the employees are doing. Right. Not are you doing your job, are you doing your job? And contributing to those, to the stresses already on there. You put them out in a light, you know, fashion. Those games and virtual launches are great ideas because it introduces or reintroduces at least the social aspect of teleworking, which, you know, is been missing for a lot of us.

Very true. Well, again, thank you, Bianca and Matt for joining us today. I know that all of our members are so lucky to have people such as yourselves on our labor law helpline there to work through some of these really challenging times as we move through 2020.

Thank you, Erica.

Thank you for having me.

Erica, thanks for joining us on the workplace. Please comment, share and subscribe to Cal Chamber's podcast by visiting calchamber.com funny.