Archives for August 2020

You care about the people you live with. Whether it is a member of your family, a friend turned roommate, or your partner, you have likely all substantially changed how you live your lives as a result of the COVID-19 pandemic. Maybe workplaces have pivoted to a remote “work from home” structure, meaning you might be spending more time with your housemates than ever before. Other workplaces, including essential businesses, have been permitted to operate under modified conditions.

While many have returned to work, the risk of transmitting COVID-19 still exists, and in some areas, it may be more possible than ever. It is conceivable that one could catch the virus at their workplace and unintentionally bring the illness home, where mask use and distancing are not typically practiced among housemates. This would be unfortunate enough, but there are situations where your roommate or loved one has an especially high risk for developing severe illness due to COVID-19. These preexisting conditions likely shape the level of risk they are willing to individually take. However, if you do not share these conditions, you may still be expected to work.

You may be wondering, then, if you have any employee rights if someone you live with is at particularly high risk for developing severe illnesses as a result of COVID-19. Below, we cover what California and federal guidance requires in these situations.

Am I Entitled To Any Accommodations If My Roommate Could Be Severely Injured by COVID-19?

In short, the answer is probably not. While California and federal laws require employers to provide reasonable accommodations to pregnant employees and employees with disabilities, including when pregnancy or disability puts them at greater risk for severe illness from COVID-19, these accommodation laws do not definitively extend to an employee’s family member or housemate that is high-risk. This is especially true if the only factor contributing to that person’s high-risk status is their age. Age has statistically shown to be a significant factor in the severity of illnesses experienced following COVID-19 transmission. Because age is not considered a disability, employers are not strictly required to reasonably accommodate employees whose only concern stems from the age of housemate.

What this means is that an employee who does not independently need an accommodation for their own disability or pregnancy generally will not be entitled to an accommodation. This can result in requests to telework to avoid potential exposure to COVID-19 will be denied if the only reason for the request is to protect a high-risk hosuemate. Despite this, employers may still choose to provide such accommodations to non-disabled employees; however, in doing so, the employer must be sure to provide such accommodations consistently. An employer can intentionally or inadvertently violate the law if they play “favorites” in granting telework or other accommodations on these terms. If an accommodation is extended to one employee with high-risk housemates, that same accommodation must be granted to other employees with similar situations.

Eligible employees are also entitled to unpaid, job-protected leave to care for a spouse, parent, or dependent child that actually has (and is not just at risk for) a serious health condition, including COVID-19. If a high risk housemate tests positive for COVID-19, for example, you have the right to take protected (though unpaid) leave to care for them while they are ill. This can become especially important to responsibly behaving during the pandemic: If you live with them and they test positive, you are also likely to be exposed and should avoid returning to the workplace until you have been cleared through testing.

How Associational Discrimination Could Influence Cases Involving High-Risk Housemates

There is one potential workaround in California that could benefit those seeking accommodations to protect their high-risk housemates. This caveat concerns the lesser-known claim for “associational discrimination.” California and federal laws prohibit discrimination and harassment based not only an employee’s protected status – including disability, age, national origin, sex, or pregnancy status – but also on an employee’s association with an individual within a protected class.

For example, it is unlawful to refuse to hire, segregate, send home, demote, or terminate employees because of their association (including marriage or cohabitation) with someone based on their disability, age, national origin, pregnancy status, or sex. The Equal Opportunity Employment Commission (see FAQ D.13) made clear that federal associational discrimination law does not require an employer to accommodate an employee without a disability based on the disability-related needs of their family member or other person with whom they are associated.

California law, however, is less clear. In fact, while California has not specifically ruled on the issue, it has recognized that California’s associational discrimination law may reasonably be interpreted to require accommodation based on the employee’s association with a disabled person. In other words, if you have a housemate that is disabled (and thus high risk for developing a serious illness as a result of COVID-19), it may be considered associational discrimination if an employer refuses to accommodate or otherwise retaliate against you for requesting those accommodations.

If you believe you are being treated differently because of your association with a person who is high-risk for COVID-19, or if you have been denied accommodations for your high-risk family member or housemate, you may be able to hold your employer legally accountable. The employment law attorneys of Haeggquist & Eck, LLP will work with you to learn about your situation and seek fair and just compensation if your employer is breaking the law.

Contact us online or call (619) 342-8000 to learn more about how we may be able to support your claim.

As California slowly opens back up amidst the ongoing COVID-19 pandemic, employees are left wondering how they will be protected from the virus if they are required to report back to work. The Center for Disease Control (CDC) recommends that employers in non-healthcare workplaces incorporate testing, combined with symptom screening and contact tracing, as part of a comprehensive approach to timely identify infected workers so that actions can be taken to slow and stop the spread of the virus. As explained in our prior blogs, employers can require COVID-19 testing to determine whether employees are currently infected but cannot require COVID-19 antibody testing to (not-so-reliably) determine whether an employee was previously infected.

Can I Get Fired For Refusing Covid-19 Testing?

Assuming the employer may properly require a test in the first place, the answer depends on the reason for refusing testing. If an employee objects to testing for religious reasons, or because of a disability or disabling medical condition, then existing anti-discrimination laws may require the employer to accommodate the employee. If the employee’s objections are purely personal, then the employer could be justified in disciplining the employee, because such personal objections are not protected by anti-discrimination laws.

These rules would not apply to any mandatory antibody testing because antibody testing is not a useful method of infection control in the context of workplace testing.

Can My Employer Require Me To Get Tested Daily?

Employers may properly take certain daily steps to monitor employees for potential coronavirus infection. For example, employers may take employee temperatures or administer a daily questionnaire about COVID-19 symptoms or exposure. Administering a clinical test every day would probably be considered excessive for most workplaces, although certain workplaces that pose substantial risk for community spread might warrant testing of some or all employees on a routine basis.

Some commercially available antibody tests have been advertised as giving rapid results, so an employer might want to use such tests on a daily basis. The CDC and other health experts question the reliability and usefulness of antibody testing, and, even if it proves accurate, antibody testing does not necessarily indicate whether an employee has or might transmit coronavirus. Because of these two facts, antibody tests are not useful to an employer’s desire to mitigate coronavirus community transmission, so employers cannot require employees to take antibody tests on any basis.

How Many Times Can My Employer Require Me To Get Tested?

The answer depends on the type of test administered by the employer. Based on current guidance from the Equal Employment Opportunity Commission and the Centers for Disease Control, employers may never use a so-called antibody test to detect SARS-2-CoV infection because the test does not provide information that is useful to employers.

Tests that detect active coronavirus infections are most useful for controlling COVID-19 community spread in the following scenarios: (1) testing employees who show symptoms of COVID-19 infection; or (2) testing employees who have been potentially exposed to COVID-19. As of July 20, 2020, the CDC stopped recommending the use of tests before employees return to work after a confirmed coronavirus infection. Instead, CDC suggests ending self-isolation 10 days after an employee receives a positive test result, at which point the employee could safely return to work without being tested.

Some workplaces might warrant routine testing if, for example, the workplace creates a high risk of coronavirus transmission because the workers are housed together, or work in close proximity under situations where social distancing is not practical. Workers in essential industries might also be properly subject to routine testing because catching potential outbreaks in their infancy is more important to such workplaces. In any case, the details of the particular workplace would determine the proper scope of routine testing.

If My Employer Requires Me To Take A COVID-19 Test, Do I Need To Pay For It?

Generally, the FFCRA and CARES Act require group and individual health insurance plans, including employer health plans, cover COVID-19 detection and diagnostic testing. Under both Acts, the following tests would be covered without cost-sharing by the employee:

• Tests approved by the Food and Drug Administration
• Tests provided by labs on an emergency basis
• State-developed tests
• All other Health and Human Services approved tests

This also requires that plans and issuers must cover multiple diagnostic tests and facility fees/related items to the COVID-19 testing (e.g., chest x-rays, and other flu tests). Additionally, all other comprehensive private health insurance plans must cover items and services relating to COVID-19 diagnostic testing that were furnished on or after March 18, 2020 through the end of the public health emergency. However, an employee’s insurance was only required to cover the cost of testing when ordered by the individual’s health care provider for diagnostic purposes, as determined by the individual’s healthcare provider. Furthermore, the Department of Human Services has stated that “testing conducted to screen general workplace health and safety … is beyond the scope of … the FFCRA.”

When Does My Employer Have To Pay For My Testing?

If an employee is not covered by an applicable group insurance plan, the EEOC’s guidance regarding the ADA may require an employer pay for the COVID-19 test. Under the EEOC’s guidance, an employer may require an employee, who the employer reasonably believes will pose a “direct threat” to the workplace, be examined by an appropriate health care professional. “An employer also must pay all costs associated with the employee’s visit(s) to its own health care professional.”

Does My Employer Have To Pay For The Time It Takes To Get Tested and the Time It Takes To Wait For My Results?

The FLSA informs employers that, “[w]henever you impose special tests, requirements or conditions that your employee must meet, time he or she spends traveling to and from the tests, waiting for and undergoing these tests, or meeting the requirements is probably hours worked.” As such, an employer may be need to pay you for the time it takes to get tested and wait for results.

Can My Employer Share my Health Information such as COVID-19-Related Symptoms or Test Results? What if They Wrongfully Disclose this Information?

In short, aside from alerting other employees of possible exposure to the virus, all other information must remain confidential.

Under both federal and California law, employers are required to keep confidential all employee health information obtained, including keeping employee medical files separate from personnel files to lessen the risk of inadvertently disclosing confidential health information. As this relates to COVID-19 and the CDC-recommended symptom screening, testing, and contact tracing, the Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”) have issued the following guidance on the types of information that employers must keep confidential:

• An employee’s statement that he or she has or suspects he or she has COVID-19;
• Any COVID-19 symptoms the employee is experiencing, including the employer’s notes or other documentation from questioning an employee about symptoms;
• An employee’s body temperature;
• The reason for an employee’s absence if due to illness or other medically related reason; and
• All COVID-19 test results.

If an employee tests positive for or is suspected to have COVID-19, the employer may notify potentially affected employees, but only in a way that does not reveal the employee’s identity or any other identifiable information. The employer may, however, disclose the name of a COVID-19 positive employee to a public health agency.

If your employer wrongfully discloses your confidential health information, they may have violated the federal Americans with Disabilities Act or state law. For example, California’s Confidentiality of Medical Information Act (“CMIA”) prohibits employers from using, disclosing, or knowingly permitting its employees or agents to use or disclose employee medical information without a signed authorization, subject to several statutory exceptions. If unauthorized disclosure occurs, an employee who has sustained economic loss or personal injury may recover compensatory damages and legal costs, and a limited amount of punitive damages and attorneys’ fees. However, based on the CMIA’s definition of “medical information,” it only applies to information “in possession of or derived from a provider of health care, health care service plan, pharmaceutical company, or contractor.” Arguably, disclosure of COVID-19 test results received from a health care provider would qualify while symptoms or body temperature obtained by the employer during preventative screening would not.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!