As we continue to navigate these unprecedented times, KCBS Radio is getting the answers to your questions about the coronavirus pandemic. Every morning at 9:20 a.m. Monday-Friday we're doing an "Ask An Expert" segment with a focus on a different aspect of this situation each day.
Today we're looking at employer liability issues as offices, stores and restaurants continue to reopen with Sylvia Kim, a partner with McGuireWoods LLP in San Francisco who advises on employment liability issues.
So the law has to adjust, I guess, at times like this. There are probably some issues arising that we hadn't dealt with before. Can you give us kind of a broad sense of how this is all being seen even as new laws are being written or new regulations being issued?
Yeah, I mean, it's certainly a rapidly developing area. A lot of the laws that have been in place in California and throughout the country are still there. What's going to be interesting to see in the years to come is how those laws are now being applied to this unprecedented new situation, and in some cases there have been local jurisdictions that have issued more specific laws that cover things like worker's compensation issues or expense reimbursement issues. But overall, I think there will be a lot of potential litigation in the coming years and we'll have to see how the existing laws are being applied to these circumstances.
Let me ask you something that that I've had people ask me, which is the question of the authority of county health officials because they're the ones who essentially are making the rules that have to be followed at the local level. Where does that stand in terms of legal history, legal doctrines?
Well, things like public health and safety generally begin first at the local level and then they sort of rise up to higher state levels or federal levels. That's kind of an interesting question, Stan, and one that I think even legal experts have sort of grappled with in determining who gets to make those calls, who pre-empts. As you know, if you've been following, there have been some inconsistent orders issued at the county level versus the state levels and so far I don't know that we've got any clear answers to it. But overall, people seem to be complying at both the very local levels and the higher levels.
Okay, well let's get to our questions and a reminder that these have been sent in via email to askus@kcbsradio.com. First one here: who's responsible for making sure employees are "clean" before they come back to work? Should I be asking for a certified test result? How do I verify that?
Yeah, so that's a good question. And if you'll sort of allow me to preface this discussion very quickly by saying that I obviously can't providing any legal advice or opinions as to any particular circumstances, particularly since legal issues often have to be analyzed on a case by case basis.
Fair enough, I should have given you that opportunity off the top and also to remind you and anybody who joins us, that if it's an area that you don't know, it's okay to say, "I don't know."
Sure, sure. But I'll just start with the general premise. Employers do have an obligation to provide a safe and hazard-free workplace to its employees, and that includes an obligation to protect employees in the workplace from exposure to COVID-19. And various federal and state agencies, including the EEOC (which is the federal agency that enforces laws that prohibit workplace discrimination among other things) said that employers are permitted to ask employees if they've experience symptoms of COVID-19 or come into contact with anyone known or suspected to have COVID-19 or traveled to countries considered by the CDC to be high risk areas for COVID-19. And they've also said that employers may take body temperatures or administer test, which could be done at the workplace by the employer or by employees at home, with employees asked to self-certify the results. And of course, employees who exhibit symptoms of COVID-19 or test positive for COVID-19 should be advised to stay home.
In California in particular, Cal/OSHA has issued some return to work guidelines that set forth criteria regarding the number of days employees should wait before returning to work if he or she has contracted COVID-19 or exhibited symptoms of COVID-19. So there are some guidelines available from the state as to how to deal with employees who are coming back to the workplace.
And let me also add the caveat that to the extent that an employer is doing these types of checks or administering temperature checks or asking employees these types of inquiries, it's important not to single any employees out, right? So it should be done uniformly for all similarly situated employees.
I'm gonna paraphrase, but this was a question that came up I think yesterday and it's kind of in the same area so let me let me throw it at you too. This was a business owner worried about having a number of part time workers who were over the age of 65 (and of course that's one of the stated risk categories). This questioner was worried about running into age discrimination issues.
Yeah, and so that's the thing. You know, there's going to be the intersection between health and safety and anti-discrimination laws, and I would caution an employer against requiring an employee to stay home who the employer assumes is high risk. Now if the employee self reports and wants to stay home then a discussion may need to be had at that point between the employer and the employee to determine whether there is some sort of accommodation, a reasonable accommodation, that could be provided to that employee. Maybe it's a teleworking or remote working arrangement. Maybe that employees will get additional paid time off.
But those types of discussions are encouraged between the employer and the employee to ensure that you aren't running afoul of any anti-discrimination law. But I would caution against ever making any assumptions about an employee being high risk or ordering an employee to stay home due to that perception.
I can see a great big collision ahead of privacy rights and HIPAA versus a push to guarantee a COVID-free workplace. Are there any new laws or regulations that might address this?
Yeah, as I mentioned, there are some federal and state guidelines that currently permit employers to ask employees questions about their symptoms or whether they've experienced it and also to take temperature checks and things like that. But employees do have a right to medical privacy, and these new guidelines don't displace those rights. And so it's important to make sure that you maintain the confidentiality of any medical information or diagnoses that the employer receives.
And employers can and should certainly notify employees in the workplace if there is a known case of an employee who has contracted COVID-19 and been at the workplace. But of course, the employee's names, symptoms, any other identifying information about the employees should remain confidential and disclosed only on a need-to-know basis and sort of would go hand in hand with that that any medical records obviously should be maintained separately in a reasonably secure location.
I'm a teacher. Our superintendent has said our school district will not buy masks for staff because businesses aren't buying masks for employees. If masks are required by a business or a school for workers, does the employer have to provide a mask?
So some jurisdictions have issued executive orders that require businesses to supply mask for their employees. And many areas in California now mandate the use of some form of face covering if you're outside the home and certain industries do require workers to wear face coverings. If masks or face coverings are mandated by the employer and necessary to carry out the job duties, then an employer very well may have to provide reimbursement for that. And I believe there may be some state-issued guidance on this in California.
But sort of the general premise is, employers are required to reimburse employees for necessary and reasonable expenses. So to the extent that an employer mandates that at work, it's possible that that could trigger some reimbursement requirements.
I have employees who don't want to return yet because of concerns over the virus. I want them to wait until they're ready. How should I handle this so they stay away, but also don't lose their unemployment benefits?
Yeah, so this is something I've encountered with my family and friends too, who are somewhat uneasy about returning to the workplace. I think the first question that an employer in that situation needs explore is, you know, what is the basis for the employees concern, right? If it's due to some underlying medical condition that places the employees at high risk for COVID-19 or because the employee has otherwise had exposure to COVID-19 or there's been exposure in the workplace to COVID-19, then there may be an obligation on the part of the employer to have a discussion with the employees and to determine, again, whether there can be some sort of alternative arrangement that could be worked out, such as remote working or additional paid time off. Employees who are legally required to quarantine under applicable law, they may be considered unable to work and they may still be eligible for unemployment benefits.
But if it's a general fear of virus exposure, in those circumstances the employer is going to have to make a determination as to whether they want to hold this employees position available. But I would again caution against providing any false information to the state regarding an employee's employment status. And then employees should be made aware that, you know, the company has to be forthright and honest with the state and report that work has been offered to the employee and that the employee turned it down. And if that's the case, the employee may not be eligible for for unemployment anymore at that point. But this is also something you really have to check with your local jurisdictions to see whether there any types of rules that govern the circumstances.
I was kind of curious because I know that some states have been more aggressive, according to news reports, than others in insisting that businesses report this. Do you know what California is doing on that front?
Honestly, I'm not sure that California has insisted on that being reported. But obviously, if the employer is asked that question during the process, they're gonna have to be honest about it. I mean, some states have even said that if for COVID-19 related reasons you need to stay home to care for a child because childcare isn't available, then you're still covered by unemployment cause you're considered unable to work. I don't believe that California has gone that far. I'm not 100% certain with that though.
This question just came in while you were giving that answer: I want to go to work but I have a child who may be home from school next fall and is home this summer. What can I do? Can they fire me?
So in California, there are also leave laws that are available to employees who need to care for a child. And typically the leaves are available for employees who need to care for a child due to a medical condition or something of that sort. Also, I think a lot of those policies have been somewhat relaxed in the COVID era. So I would talk with your employer to see what sort of accommodation could be made available for you. I mean, it's possible that your employer may be willing to provide you additional leave because you need to care for a child at home. And again this is another area where some local jurisdictions have enacted laws that may cover this and it may provide additional leave for employees who are unable to return to work because of childcare issues.
If I've instructed my workers to work from home, am I responsible for any sort of workman's comp claims for injuries they might incur at home?
So, in general, yes. An employee injury or illness is going to be compensable under workers' compensation laws if it arises out of and in the course of employment, regardless of the location where the injury occurred. So that could be, you know, an injury that occurs at home, if it's considered to arise out of the course and scope of your employment, it can be compensable under workers' compensation laws.
The next one goes down workers' compensation laws too: does your guests have any wisdom about workers' compensation and the virus? Specifically, can an employee file for workers' comp if she gets sick and thinks the exposure was at work?
Yes, so California specifically, if your worker is diagnosed with COVID-19 within 14 days of working at the employers' workplace, there is a rebuttable presumption that the COVID-19 related illness arose out of it in the course of employment. And it's therefore workplace injury that's compensable under workers' compensation laws.
I've been advised that I should have customers sign a waiver before they come into my store (clothing boutique not yet open for in-store business). Is there some sort of standard form for this, and is it legally binding?
Standard form? Not that I'm aware of. But what I'll say is, I think the signing of waivers is something that we may very well start seeing businesses doing before allowing customers to enter into retail establishments. And you know, it's yet to be seen whether these types of waivers will be binding and to what extent, right, in the aftermath of the COVID-19 pandemic. I mean, it's possible that they may be enforceable to some extent in California. You can have somebody sort of sign a waiver to cover ordinary negligence claims but waivers are typically not enforceable against conduct that's due to gross negligence or recklessness or intentionally wrongful conduct. So it'll be interesting to see how that works in the aftermath of COVID.
I'm worried about my liability insurance rates going up when the insurance companies start looking at potential liability. Have you seen any data on that or provide any advice?
I haven't reviewed any specific data on this issue. I mean, generally speaking, I would imagine that more and more businesses are going to be exploring the use of insurance to mitigate potential losses and liabilities that may result from COVID-19. So as that occurs, and insurance companies began paying out money for claims, I think a rise in the cost of insurance may very well be inevitable.
My spouse has cancer, which puts them at higher risk, so we really limit going out. I asked my employer to let me work from home because of this, and they said they had to deny the request because other employees are also requesting to work from home because they don't want to get their families sick. So rather than pick and choose who gets to work from home, they denied everyone's request. Do I have any laws or mandates that could help me or are the laws allowing the employer to do this?
Yes. So again, I think that this is sort of one of those areas where it's difficult to really provide an answer because it has to be looked on as a case by case basis. And there is sort of this intersection between wanting to apply your policies fairly to people, but also having an obligation to accommodate individuals who either need to work from home or take leave due to either their own medical condition or someone else's medical condition. And there are also leave laws that provide employees with a certain amount of leave in those types of situations. So again, I think that's something that has to be dealt with on a case by case basis. But I would look at your employer's leave policies, look at some of the guidelines that have been issued by the state, and I think, you know, again like I said, that's a discussion that really needs to happen on a case by case basic.
When employees work from home, they may incur additional expenses for everything from Internet and cell phone usage to electricity to new furniture or even computers. Should employers directly reimburse employees for these expenses?
So I guess the sort of general premise like I mentioned earlier is, at least in California, employers are required to reimburse employees for expenses that are considered necessary and reasonable. And the courts in California have said that this requirement applies to personal cell phone usage if the employer doesn't otherwise provide a company-issued cellphone or a company-issued cell plan. And it's possible that this reimbursement requirement may also extend to other expenses related to working from home, such as Internet usage or computer usage or reimbursement for sort of normal wear and tear could also be required.
The question though is, in California you're only required to reimburse employees for expenses that are considered necessary, right? So, in other words, employers are not necessarily required to reimburse expenses that are incurred voluntarily. For example, if an employee isn't required to work from home, then the employer may not be required to reimburse the employee for those expenses. And employers also may not be required to reimburse employees for expenses that are sort of over and above what the employee or the employer requires employees to be equipped with at home in order to work.
Do I have any protection if I'm following the rules and someone contracts the virus and they trace it back to my business?
I think there are a number of ways that we may see liability claims arising from exposure to COVID-19. One way is gonna be through, you know, complaints filed with OSHA. Another way that we may see it is going to be in the form of tort lawsuits such as a negligence claim. Or liability may arise in the workers' compensation context like we discussed earlier.
So I think all of this really demonstrates why it's going to be important for employers to implement best practices for keeping the workplace safe. Ultimately preventative measures may be the best defense against liability, and the CDC and OSHA as well as Cal/OSHA, they've issued guidance for employers on how to suggest and maintain healthy and safe workplaces. California agencies have released industry specific return to work guidelines. And so what's appropriate is gonna have to be determined again on a case by case basis, depending on the risk of exposure. But some of the things that I think employers should consider and that we'll be seeing happening in the workplace is implementing enhanced cleaning and sanitation protocols, maybe physical modifications to the workplace in order to support social distancing, installation of physical barriers. In some cases, employees may want to consider modifying work schedules to minimize the number of people who are physically present in the workplace at any given time or providing personal protective equipment, such face coverings and hand sanitizers - which as I mentioned before is required in some industries in some jurisdictions.
And of course, if there is a confirmed case of COVID-19 in the workplace, the employer should investigate it to determine whether there are any work-related factors that could have contributed to the risk of infection and make sure to take measures to prevent any further cases.
And I'm assuming as we go forward, all of us in the work world who've gone through annual training on the issues, germane to our particular jobs are going to be seeing COVID-19 training of some kind, too.
Absolutely.
I love this one, this questioner says: does this mean 65th birthday or 66 years or greater This person, I guess, asking about the age discrimination number. So are you in the protected class when you reach age 65 as in on your birthday, or do you reach that when you leave your 65th year and become 66?
Woah, that's an interesting question. I've never thought about that.
I hadn't either.
Well, I'm not aware of any specific guidance on that issue. I will say, under the anti-discrimination laws, typically the threshold is 40. And the way I view it is, the day you turn 40 you are in that protected classification.