California’s Department of Fair Employment and Housing (DFEH), the agency charged with administering California’s employment discrimination statute and regulations, has updated its COVID-19 guidance for employers. The updates cover many issues that employers had been struggling with during the pandemic, including:
- COVID-19 Inquiries and Protective Equipment
- Employees with COVID-19 Symptoms or Infection
- Job-Protected Leave
- Reasonable Accommodations for Employees with Disability/Vulnerable Populations
Some of the information that employers may want to take special note of include:
The DFEH states that employers may ask employees if they are experiencing COVID-19 symptoms, which is also required under many of California’s local health orders. Employers can also ask an employee why they did not report to work if they suspect the absence was for a medical reason. However, employers must keep confidential any illness or medically related information disclosed by the employee. The guidance provides that employers may also take an employee’s temperature or require an employee to submit to a COVID-19 viral test (but not an antibody test). Employers should note that these allowances are based on the current state of the pandemic and may change as the circumstances continue to develop.
Employees with COVID-19 Symptoms or Infection
Employers are permitted under the current guidance to ask if employees have COVID-19 symptoms, so long as the information is kept confidential. Moreover, employers may send employees home if they have COVID-19 symptoms or test positive for COVID-19. Employers should review the guidance from California’s Labor Commissioner, the agency that enforces wage and hour matters, regarding sending employees home due to COVID-19 symptoms or similar.
The DEFH reminds employers that employees may qualify for leave under the California Family Rights Act (CFRA) either to care for a family member with COVID-19 or for their own illness if it results in inpatient care or requires continuing treatment or supervision by a health care provider. As with other requests for CFRA leave, employers may require medical certification. However, the DFEH states that “[i]n a pandemic, employers must use their judgment and recommendations from public health officials to waive certification requirements when considering and granting leave requests.”
The FAQs discuss when reasonable accommodations must be considered for members of vulnerable populations. The DFEH guidance distinguishes between reasons for which someone may be a member of a vulnerable population. If an employee is a member of a vulnerable population because of a disability, then absent an undue hardship, the employer must provide a reasonable accommodation. However, if the employee is a member of a vulnerable population because of age alone, there is no obligation to accommodate the employee. The DFEH noted that age is not a disability.
The FAQs provide that an employer may require employees to receive an FDA-approved COVID-19 vaccine if certain criteria are met, including:
- The employer may not discriminate against or harass employees or job applicants on the basis of protected characteristics.
- The employer must provide reasonable accommodations as required by applicable law.
- The employer may not retaliate against anyone for engaging in protected activity such as requesting a reasonable accommodation.
The FAQs also provide that employers who have a mandatory vaccine program may ask for “proof” of vaccination. If employers make such requests, the FAQs provide that employers “may wish to instruct their employees or applicants to omit any medical information from such documentation.” Employers are reminded that an individual’s vaccination status must be kept confidential.
Jackson Lewis continues to track federal, state, and local guidance pertaining to COVID-19 and the workplace. If you have questions about the DFEH guidance or related issues, contact a Jackson Lewis attorney to discuss.