Recently, the Department of Fair Employment and Housing (DFEH) published a bulletin providing guidance on staying safe during COVID-19, while still adhering to employee civil rights. Below is a summary of the information provided in the bulletin. For the complete bulletin, go to https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf.
This summary is not intended to be legal advice. For that, consult an attorney.
Summary of DFEH Employment Information on COVID-19 Published on March 4, 2021
A number of issues are being addressed in order to reduce the spread of COVID-19 in the workplace, while still complying with the civil rights of employees, which continue to be in effect during the pandemic. The following COVID-19 inquiry activities must be done in a way that comports with all of an employee’s civil rights, including the Fair Employment and Housing Act (FEHA).
Before employees enter the workplace, the employer may ask if they are experiencing COVID-19 symptoms, take employee temperatures, require a COVID-19 viral test (although not an antibody test), and require employees to wear personal protective equipment. Also, employers may ask employees why they have been absent if they suspect it is for a medical reason. Employees may be sent home if they display COVID-19 symptoms or if they test positive for COVID-19.
Employees with Covid-19 symptoms or infections: privacy, leave, reasonable accommodations:
When an employee tests positive for Covid-19, has been exposed, or is quarantining, the employer should not identify or reveal that employee’s personal health related information to other employees. However, other employees may be informed of possible exposure without revealing personal information.
The California Family Rights Act may entitle employees to receive up to twelve weeks of unpaid leave for serious health conditions due to COVID-19 or to care for certain family members. Employees may request medical certification be provided within fifteen days of submitting the request, unless it is not practical to do so. The pandemic may make it impractical
Employers with more than five employees may be required to provide reasonable accommodations such as telework or leave for COVID-19 illness if it qualifies as a disability, unless doing so would be an undue hardship or if the employee cannot perform essential duties with accommodations. Also, this requirement may be waved if the employee cannot perform the essential duties with accommodations in a way that is safe and healthy for the employee and others. A timely, good faith interactive process is required to identify and implement reasonable accommodations.
While the risk of severe illness from COVID-19 is highest for older adults, employers are not required to reasonably accommodate employees based on age alone, although they may not discriminate against older employees. For example, an employer may not allow only employees under sixty-five to return to work, even to protect older workers.
When an employee requests a change in schedule, telework, or leave as a reasonable accommodation, employers may generally request medical documentation confirming the existence of a disability and the need for reasonable accommodation. Employers should waive the requirement of reasonable medical documentation due to the pandemic, until such a time as the employee can reasonably obtain the documentation.
During a pandemic, employers must continue to provide reasonable accommodations to employees whose disabilities are unrelated to the pandemic as well.
Employers may require employees to receive a Food and Drug Administration (FDA) approved vaccination against Covid-19 even if employees object that they don’t trust the vaccine to be safe and as long as it does not discriminate, harass or retaliate based on a protected characteristic, and also if it reasonably accommodates disabilities and religious practices and beliefs. Whether or not a reasonable accommodation exists requires a fact-specific determination.
Employers may discipline employees who question the wisdom of or resist a vaccination mandate if it is not retaliation for protected activity such as opposing practices prohibited by FEHA and if the discipline is not for an employee alleging the vaccination policy discriminates bases on a protected characteristic or has a disparate impact on a protected group.
An employer may ask questions that could elicit information about a disability, including questions on a pre-vaccination screening questionnaire if the employer itself is administering a vaccination program and as long as the inquiry is “job-related and consistent with business necessity.” All retained records must be maintained as a confidential medical record.
Employers that require employees to receive a vaccination against COVID-19 which is administered by a third-party may require the employee or applicant to submit “proof” of vaccination. Employers may wish to tell employees to omit any medical information from the “proof.” Any record must be maintained as a confidential medical record.