In a situation that is constantly changing Employers and Employees need to adapt, use common sense, follow the law and remember to treat all similarly situated Employees in the same manner.
Some issues that may arise in the workplace are:
A worker in the office has a bad cough; his manager is concerned what should she do?
It is perfectly appropriate to check on them, be thoughtful, but do not delve into ADA private issues. It is appropriate to send them home as Employer needs to consider rest of staff safety. If the Employee is sick it is appropriate to request a note from a doctor clearing Employee to come back to work. If an Employee is sick and wants to continue working, it is absolutely appropriate to say “No” and send them home.
An Employer customarily has lunch catered or puts on events where Employees help themselves to food is that OK?
No, stop all gatherings especially around food. Consider box lunches or just do away with practice and explain why.
Public health officials have declared a national and local state of emergency. Can Employer shut down? Demand Employees work from home? Who has to be paid under these circumstances?
California Labor Code section 6400 obligates all California Employers to “furnish Employment and a place of Employment that is safe and healthful for the Employees therein.”
An Employer can decide to shut down operations for a week or two or until more information is available. An Employer is not required to pay Employees, especially hourly Employees when they are not at work. As this puts a great hardship especially on Employees living paycheck to paycheck some Employers have chosen to pay Employees for 2 weeks while they close down.
An Employer can decide to have certain Employees or whole departments work from home as long as these Employees are given the tools to do so, keep track of their time and work performed for payroll purposes, and are reimbursed for expenses like internet and telephone use.
Essential Employees can be ordered to come into work, but attention must be given to their concerns, distance should be maintained and cleanliness and sanitization of places of Employment are very important.
What if Employees ask for masks and hand sanitizers is Employer obligated to provide these items?
Technically no, but it is a good idea if it relieves stress and fear around the office and for general good health.
What if Employees ask to be sent home because they are afraid of crowds or being in the workplace. This is a delicate situation. While an Employer does not want to promote an atmosphere of fear which tends to spread, an Employer wants to treat each Employee the same. If an Employee is that afraid of being at work, they are not likely to put in a productive day and can be sent home. Of course, this can cause a domino affect so consider all options, maybe segregating the Employee or taking other precautions.
If an Employee demands to be removed from sitting next to Asian or Italian colleague over coronavirus fears, this should absolutely NOT be allowed as the basis is discrimination based on race and national origin.
Can an Employer limit an Employee from coming into work if the Employee has recently travelled to an infected area or someone in the Employee’s family has been to an infected area?
The answer is yes, the Employee may be asked by the Employer not to come into work for the “quarantine period” which is currently 14 days.
Likewise, an Employer cannot force an Employee to travel for work under the current circumstances and cannot fire an Employee for refusing to travel during this time of National Emergency.
What if an Employee requests leave under Family Medical Leave Act because of concern over the Coronavirus spread? Or an Employee requests time off for childcare under new California law “Parental Leave for School related activities”.
Family Medical Leave Act is for Employers with 50 or more Employees where an Employee gets unpaid time off to take care of themselves or a sick family member and the Employee’s job is protected for 12 weeks in any 12-month period. An Employee asking for this kind of leave must show a doctor’s note that they or a family member are sick. One can also argue that an Employee who falls into the “high risk” category i.e. elderly with underlying conditions should be permitted to take FMLA time off. Fear is not a reason for FMLA time off.
With regard to childcare, California Labor Code 230.8 applies to Employers with 25 or more Employees and provides up to 40 hours a year unpaid time and no more than 8 hours in any given month. This Code section was not designed for situations where schools close completely as is the situation now.
It is at the discretion of the Employer whether or not to grant unpaid time off with regard to childcare, but it is recommended it not be linked to this Labor Code section as it does not apply. More importantly, whatever accommodations you provide to one parent must be provided to all parents equally.
With regard to school closures some suggestions are to have spouses coordinate responsibilities maybe taking alternate days off; have children come to work but keep them separated and the area sanitized, close the office, let parents take unpaid time off but make sure that those Employees who are not parents are given the same opportunity.
Can an Employee use sick days or paid time off or vacation days if they are off work or business is closed.
Yes they can, but they cannot be forced to do so.
In treating Employees equally and with common sense hopefully businesses will continue to operate, and we will all come through unscathed on the other end of this national emergency.
Do you have a similar legal problem?
Liat Cohen has been practicing law in the Los Angeles Area for over 25 years. If you have experienced a similar issue, feel free to contact her for a free initial consultation to discuss how she can help you solve your legal problems.