During these unprecedented times, Employers are posed with challenging situations that are often at odds with traditional employment laws. In response to these conflicts, both the Equal Employment Opportunity Commission ("EEOC") and the California Department of Fair Employment and Housing ("DFEH) have issued useful guidance to help employers navigate these murky waters.

Below are some helpful questions answered by the publications specific to what an employer can and cannot do right now in response to the threat of COVID-19, given the current state of the pandemic.

Q . Can an employer take an employee’s temperature?

A . Yes, solely to evaluate the risk that employee’s presence poses to others in the workplace as a result of COVID-19. If an employer wishes to take the temperature of its employees, it needs to be consistent and ensure it is taking the temperatures of all employees in the same classification. Employers should not pick and choose which employees will be subject to this practice. 
 
Q .  Can an empoyer send employees home if they display COVID-19 symptoms?

A . Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. Employers must permit an employee to use paid sick leave for the absence. If sick leave is exhausted, employees may be entitled to other paid leave (including vacation or PTO), or job-protected unpaid leave.
 
Q.    Can an employer require employees to stay home if they have COVID-19 symptoms?

A. Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace.
 
Q.    What can an employer ask an employee who calls in sick right now?

A . During this time, employers may ask employees if they are experiencing COVID-19 symptoms (fever, chills, cough, shortness of breath, or sore throat). Employers should maintain all information about employee illness as a confidential medical record.
 
Q.    Can an employer require employees returning to work to provide a doctor’s note certifying their fitness for duty?

A.   Yes. (But, as a practical matter, doctors and other health care professionals may be too busy, so new approaches may be necessary.)

Q. What information may an employer reveal if an employee is quarantined, tests positive for COVID-19 or has come in contact with someone who has the virus?

A.   Employers can notify affected employees verbally or in writing that they have potentially been exposed to an employee who has tested positive for COVID-19, including information such as the date the employee tested positive. However, an employer may not reveal the employee’s name to ensure compliance with privacy laws. Employers should not confirm the health status of employees or communicate about employees’ health.
 
Q.   Are employees entitled to job-protected unpaid leave under the California Family Rights Act (“CFRA”) if they cannot work because they are ill with COVID-19 or must care for a family member who is ill?

A.  For employers that are covered under California's Family Rights Act ("CFRA"), an employee with COVID-19 may qualify as a “serious health condition” entitling an employee to CFRA leave if it results in inpatient care or continuing treatment by a health care provider, or possibly, if it leads to conditions such as pneumonia.
 
Q.    Are employees who are not eligible for CFRA leave still entitled to accommodation if they cannot come to work because of illness related to COVID-19?

A.   Whether the employee’s COVID-19 illness rises to the level of a disability (as opposed to a typical illness such as the flu) is a fact-based determination. Employers should consider telework and leave as a reasonable accommodation for employees with illness related to COVID-19 unless doing so imposes an undue hardship.
 
Q.   Can an employer that is hiring, screen applicants for symptoms of COVID-19?

A.  Yes, after making a conditional job offer of employment, as long as it does so for all entering employees in the same type of job.
 
Q .   Can an employer delay the start date of an applicant who has COVID-19 or associated symptoms?

A.    Yes.
 
Q.   Can an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or associated symptoms.

A.     Yes.
 
The full text of the EEOC's guidance can be found here . While this publication was initially prepared in response to the prior H1N1 outbreak, it has been updated as of March 21, 2020 in response to COVID-19, with the new information appearing in bold. The DFEH’s publication, a FAQ on DFEH Employment Information on COVID-19, can be found here .

Both publications caution that employers should be sure to follow guidelines from the Center for Disease Control (CDC), as well as state and local public health authorities for employers.

The interplay between state and federal leave, accommodation and privacy laws, in combination with CDC and public health guidance and orders, and the need to create and maintain a safe workplace can be difficult to navigate, and are evolving each day. You can anticipate that these guidelines may change as the health and regulatory landscape continues to evolve. 

If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at  www.brgslaw.com .

Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Stephanie B. Kantor
Ballard Rosenberg Golper & Savitt, LLP