DFEH Guidance: Keeping Workplaces Safe While Protecting Civil Rights

April 16, 2021 11:33 am

DFEH Guidance:  Keeping Workplaces Safe While Protecting Civil Rights

Written by Doug Larsen, of Fishman, Larsen, and Callister

On March 4, 2021, the California Department of Fair Employment and Housing (“DFEH”) issued new guidelines to help employers maintain workplace safety and still uphold civil rights.  This Guidance has been overshadowed by the many pronouncements of the CDC, state and local public health departments, the Governor’s office, other governmental organizations, including OSHA and Cal/OSHA.  Nevertheless, it is important to be aware of how an employer’s efforts to maintain a safe workplace can affect employees’ civil rights.

The Guidance is in the form of questions and answers.  Here are some of the highlights.

Medical Condition.  The DFEH notes that the Fair Employment and Housing Act (“FEHA”) prohibits workplace discrimination and harassment based on medical condition.  However, medical condition is limited to a health impairment related to a cancer diagnosis, record or history of cancer, or to genetic characteristics.

Employee Screening.  FEHA permits employers to screen employees entering the workplace for COVID-19.  This may include asking employees whether they are experiencing COVID-19 symptoms, and measuring body temperature.  An employer can also ask employees why they have been absent from work, even if the employer suspects the cause of the absence was a medical condition.  An employer may also require COVID-19 viral testing to detect the presence of COVID-19.

An employer is justified in sending an employee home if the employee displays COVID-19 symptoms.  In fact, employers should take this action.  An employee can use accrued paid sick leave (“PSL”) or other employer-provided benefits such as vacation or paid time off.  Employers must send home an employee who tests positive for COVID-19.  This employee may be entitled to PSL, other employer-provided benefits, supplemental COVID-19 paid sick leave, or workers’ compensation benefits.

CFRA.  The Guidance indicates that an employee with COVID-19, or who cares for a family member with COVID-19 may qualify for leave under the California Family Rights Act (“CFRA”).  In my opinion, it would be rare for an employee not to qualify for leave under the CFRA or under the Family and Medical Leave Act (“FMLA”).  Employers should start the process to designate the time off as CFRA and/or FMLA leave when notified of a COVID-19 related leave.  However, employers should not expect an employee to provide medical certification within 15 days of the request for leave due to the pandemic.  An employer may even waive the requirement of medical certification during the pandemic.

Disability.  The Guidance recognizes that an illness related to COVID-19 may or may not rise to the level of a disability.  For example, an illness like the flu is not typically considered a disability.  However, if the illness is more severe than the flu, an employer is charged with engaging in a good-faith, interactive discussion to determine reasonable accommodations, and then providing an accommodation unless it is an undue hardship.

It is difficult to determine a situation where a person struggling with severe COVID-19 symptoms might be able to work.  However, an employee might qualify as an individual with a disability if caring for a person with COVID-19.  Remember that an employee can be deemed within a protected class such as an individual with a disability because that employee is associated with a person who has a disability, or even a perceived disability.

Determining leave rights is a difficult process.  My recommendation generally is to list all of the leaves that might be available to a person whose situation involves COVID-19 and make the determination for each of those leaves whether the business is a covered employer, whether the employee is an eligible employee under that law, and whether the conditions for the leave have been met.

Age.  A person is not disabled simply because of advanced age.  While older adults are at the highest risk, age is not a disability.  Thus, an employer is not required to accommodate an employee based on age alone.  (It is interesting to note here that according to the California Department of Public Health, as of April 14, 2021, persons 50-64 make up 19 percent of the COVID-19 cases in California and 20 percent of COVID-19 deaths.  Persons 18-49 make up 57 percent of the COVID-19 cases and 7 percent of the COVID-19 deaths.)

Vaccination Requirement.  An employer may require employees to obtain a COVID-19 vaccination so long as the employer does not discriminate and also provides accommodations for reasons of religious beliefs or disability.  An employer should engage in the interactive process in both circumstances.  No accommodation is required for an employee who simply believes the vaccine is unsafe or ineffective.  Asking an employee for verification of vaccination does not violate FEHA.

Summary.  Navigating the many COVID-19 laws, regulations, ordinances and other pronouncement is challenging.  Contact your legal advisors for assistance in addressing these COVID-19 issues, and for implementing the required COVID-19 Prevention and Response Program in your workplace.

A copy of the DFEH Guidance is found HERE.

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