COVID-19

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!

George Orwell once opined on how the language of politics serves primarily to “make lies sound truthful.” The United States Senate has introduced a coronavirus response bill that proves the truth of Orwell’s hypothesis. Although bearing the name “SAFE TO WORK Act,” the Senate’s proposed bill does the opposite by stripping away workplace safety protections for American workers and codifying means of keeping other violations private. Below, we break down the consequences of the SAFE TO WORK Act were it to be passed.

How The SAFE TO WORK Act Addresses COVID-19 In The Workplace

One of the largest questions looming over American workplaces concerns who is ultimately responsible for COVID-19 transmission that might occur. Businesses are required to remain in compliance with local and state guidelines in order to operate during the pandemic, but overwhelmed local health agencies can conceivably result in scenarios where insufficient enforcement results in transmission. If an employer refused to enforce physical distancing or face covering guidelines, it might be weeks or even months before a government official can investigate the concern and mandate a fix. In that time, it is very possible that the especially infectious coronavirus is transmitted between customers and employees. If you become ill, shouldn’t your employer – the authority responsible for keeping their employees safe – be held responsible?

According to the U.S. Senate’s proposed bill, no, they should not be held accountable. The ironically named “SAFE TO WORK Act” would limit the right of any person exposed to the coronavirus at work to recover in a lawsuit against a business unless the business took affirmative action that was either intended to, or virtually guaranteed to, cause the person to become infected by coronavirus. A company would also be immunized from liability by proving it either (1) complied with any government guidelines related to coronavirus mitigation; or (2) had a written policy in place that complied with coronavirus mitigation guidance.

These terms would give employers a huge advantage in shielding themselves from litigation on a federal level. An employer could conceivably block a seemingly justified lawsuit by producing a written policy regarding COVID-19 safety. Any lax enforcement that may have contributed to the transmission will likely be difficult to prove, and given the wording of the law, it would appear employees would still be protected so long as they did not intentionally create a situation conducive to transmission. In other words, unless your boss deliberately and publicly flaunted masking requirements and mandated all employees simultaneously gather in an indoor space – or some other egregious display of recklessness – an employee infected with COVID-19 will likely be out of luck.

As applied to workers injured by their employer’s misconduct, this law erects a tremendous barrier to recovery. The bill also limits damages to “economic” damages, for example, damages like lost income and medical expenses, unless the injured person can prove the company engaged in “willful misconduct.” The injured person can only recover for the physical pain and suffering of a coronavirus infection if he or she meets that high bar of proving willful misconduct. Keep in mind that a serious COVID-19 infection can lead to protracted hospital stays and numerous, expensive medications. It can also have long-lasting effects that keep you out of work for months. In a typical scenario, a lawsuit could pursue monetary compensation to cure these damages, but the SAFE TO WORK Act heavily restricts this ability.

Additional Roadblocks For COVID-19 Victims

As if the substantive limitations were not onerous enough, the proposed law also includes procedural roadblocks for injured victims, who must publicly name every single person they interacted with in the two weeks prior to coronavirus exposure as well as any place they visited during that time. While this measure is ostensibly meant to support contact tracing efforts to stymie additional outbreaks, it has the effect of introducing yet another hurdle for victims seeking justice. Injured persons must also acquire independent medical evaluations as a prerequisite to filing any lawsuit.

The bill includes procedural devices that may seem innocuous to casual observers. For example, the bill halts all civil discovery if the defendant moves to dismiss the lawsuit and provides a procedure to appeal the denial of motions to dismiss. This seems trivial, but it could be used to effectively lock up a lawsuit for a year or more. Justice delayed is justice denied: Victims who desperately need support will be forced to endure delays in a system intended to halt their progress wherever possible. In another attempt to prevent cases from proceeding on the merits, the proposed law also apparently bans the use of “bellwether” trials in cases organized under federal multidistrict litigation law.

Perhaps worst of all, the Senate’s proposed bill creates a legal weapon for businesses to employ against victims who attempt to settle their lawsuits. Under the proposed bill, a company can sue a person who makes a written settlement offer if the lawsuit proves “meritless.” This potent weapon comes with no limitation on damages and would even allow business to recover attorneys’ fees. This in effect serves as a broad intimidation tactic, as employers will be able to lawfully retaliate against employees who cannot clear the already ludicrously high bar of proving negligence under the terms of this proposed bill.

Taken together, these proposed rules will make it virtually impossible for almost all workers hurt by the coronavirus to recover for their injuries. In this unique and trying moment, employers have a responsibility to keep their employees and customers as safe as feasibly possible. This means exercising extreme caution in all areas of the workplace and enacting all guidelines mandated by local and state health agencies. Inevitably, some unscrupulous employers will fail to rise to this task and put their workers in danger. Contracting COVID-19 in the workplace could lead to months of physical suffering, mental anguish, and lost wages. Even a single vector of transmission out of negligence will also literally put customers and other employees in danger.

In any other situation, you would be entitled to pursue legal action against an employer acting so recklessly. The new Senate bill farcically seeks to protect employers by all means necessary and force the resumption of workplaces that are not necessarily safe under current pandemic conditions. Fortunately, the SAFE TO WORK Act and its provisions are not necessarily expected to become codified into law. The U.S. House of Representatives, which has a Democratic Party majority, has objected to its employee-unfriendly provisions. Less fortunately, a stalemate over these terms will likely prevent additional COVID-19 relief from being passed in the immediate future.

In the meantime, if you have become infected with COVID-19 at your workplace due to the negligence of your employer, do not hesitate to explore your legal options. Our employment attorneys at Haeggquist & Eck, LLP can evaluate the facts of your situation and determine if you have a case.

Call (619) 342-8000 or contact us online to get the legal assistance you need with COVID-19 in the workplace.

On May 6, 2020, Governor Newsom signed Executive Order N-62-20, creating a presumption that any COVID-19 diagnosis qualifies an employee for workers’ compensation benefits.  The presumption applies if all the following requirements are satisfied:

1. An employee tested positive for COVID-19 within 14 days after a day of working/performing services at the employer’s place of employment;

2. The workday mentioned above was on or after March 19, 2020;

3. The place of employment mentioned above is not the employee’s home or residence; and

4. The COVID-19 diagnosis was done by a licensed physician and the diagnosis is confirmed by further testing within 30 days after the original diagnosis.

Under the order, workers are entitled to full benefits including “full hospital, surgical, medical treatment, disability indemnity, and death benefits.” An employee must use all available paid sick leave before he or she can collect temporary disability benefits. If an employee was diagnosed with COVID-19 on or after May 6, 2020, the employee must be certified for temporary disability within 15 days of the diagnosis, and every 15 days thereafter.  If an employee was diagnosed before May 6, 2020, the employee must obtain certification by May 21, 2020, documenting the time period which the employee was unable to work, and must be recertified for temporary disability every 15 days thereafter.  The presumption applies to all California workers’ compensation insurance carriers and will stay in place until July 5, 2020.

Although the presumption can be rebutted by “other evidence” within 30 days of the claim, this is a powerful incentive for employees to return to work.  Governor Newsom stated, “we are removing a burden for workers on the front lines, who risk their health and safety to deliver critical services to our fellow Californians, so that they can access benefits, and be able to focus on their recovery.”

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