New Guidance for Employers on COVID-19 in the Workplace

Attorney Nicholas Kanter

Nicholas Kanter | Shareholder

July 27, 2020

After several months, California’s Department of Fair Employment and Housing (DFEH) released updated guidance on COVID-19 in the form of FAQs. The new guidance provides answers to many questions employers face when re-opening the workplace, including:

May an employer require an employee to submit to a medical test to detect the presence of the COVID-19 virus or antibodies before permitting employees to return to the workplace?

While the EEOC (the federal equivalent of the DFEH) previously answered this question, the DFEH had not. Under the new guidance, and consistent with the EEOC, the DFEH permits testing for the COVID-19 virus, but not for antibodies, so long as the test is “job-related and consistent with business necessity.”

How much information may an employer request from employees who report ill at work?

Per the guidance, employers may ask employees if they are experiencing COVID-19 symptoms. All answers must be kept confidential and in employee medical files separate from the employee’s personnel file.

Are employees entitled to job-protected unpaid leave under the California Family Rights Act (CFRA) if they cannot work because they are ill due to COVID-19 or must care for a family member who is ill?

Under CFRA, qualifying employees may be entitled up to 12 weeks of job-protected leave for their own serious health condition, or to care for a spouse, parent, or dependent child with a serious health condition. The DFEH guidance states COVID-19 will qualify as a serious health condition if it results in inpatient care or continuing treatment or supervision by a health care provider. The virus can also qualify as a serious health condition if it leads to conditions such as pneumonia.

If an employee is vulnerable to severe illness from COVID-19 due to their age, is the employee entitled to a reasonable accommodation?

According to the DFEH, although the risk for severe illness from COVID-19 increases with age, because age is not a disability, employers are not required to reasonably accommodate employees based on their age alone.

All of the DFEH’s newly-released COVID-19 FAQs can be found here.

Nicholas Kanter is a Shareholder in our Employment and Civil Litigation Practice Groups.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.

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