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California - Updated COVID-19 Guidance

On July 24, 2020, the California Department of Fair Employment and Housing released an updated guidance for employers about COVID-19 addressing:

  • Civil Rights During a Pandemic: Civil rights laws are in effect during a pandemic, the Fair Employment and Housing Act (FEHA) prohibits discrimination in the workplace based on an individual’s protected status, which includes a medical condition. However, a medical condition is defined under the act as any health impairment related to or associated with a diagnosis, record, or history of cancer or genetic characteristics.
  • COVID-19 Inquiries and Protective Equipment: Employers may ask all employees entering the workplace if they have COVID-19 symptoms and may take their temperatures before allowing entrance. Employers may also:
    • Require employees to submit to viral testing but not antibody testing before permitting entrance.
    • Ask why an employee did not report to work but if an employee discloses an illness or medically-related reason for their absence it must be maintained as a confidential medical record.
    • Require employees to wear personal protective equipment during COVID-19 pandemic and if they need a reasonable accommodation (such as non-latex gloves, gowns for individuals who use wheelchairs) it should be provided, absent undue hardship.
  • Employees with COVID-19 Symptoms or Infection: The very limited information an employer may reveal if an employee is quarantined, tested positive for COVID-19, or came in contact with someone with the virus. Employers may also:
    • Send employees who exhibit COVID-19 symptoms home because, per the federal Centers for Disease Control an employee with COVID-19 is unable to perform their essential duties in a way that would not endanger the health or safety of others in the workplace even with a reasonable accommodation.
    • Send employees home if they test positive for COVID-19
  • Job-Protected Leave: Employee entitlements to job-protected leave under the California Family Rights Act (CFRA), appropriate healthcare professional certification when CFRA leave is needed, and that COVID-19 qualifies as a serious health condition under the CFRA if it results in inpatient care or continuing treatment/supervision by a healthcare provider (or leads to conditions like pneumonia).
  • Reasonable Accommodations for Employees with a Disability/Vulnerable Populations: Reasonable accommodations for a disability when an employee cannot go to work because of an illness related to COVID-19 or when an employee has a medical condition that increases their risk for severe illness from COVID-19. Additionally, regarding reasonable accommodations:
    • Employees who are vulnerable to severe illness from COVID-19 due to age are not entitled to a reasonable accommodate, based on their age, because age is not a disability and employers are not required to reasonably accommodate employees based on age alone.
    • Remote work accommodations, or taking leave because of a COVID-19 disability, and medical documentation.
    • Reasonable accommodations must continue to be provided for employees with disability that are unrelated to the pandemic, barring undue hardship.