California Department of Fair Employment and Housing Publishes COVID-19 Employment Guidance

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By: Philip A. Toomey, Esq.

The California Department of Fair Employment and Housing (“DFEH”) has published its Employment Information on COVID-19. Here are the top 10 “take-away’s” from the DFEH guidance:

  1. Employers should review workplace health and safety procedures to help prevent exposure to the virus, and ensure compliance with Cal/OSHA workplace safety guidance.
  2. Workplace policies and practices should also be reviewed to ensure they uphold civil rights protections and that discrimination does not occur in the workplace. The publication reminds employers a pandemic does not excuse compliance with California civil rights laws.
  3. Employers should rely on public health recommendations for the Centers for Disease Control and Prevention.
  4. Employers are required to comply with all public health orders issued by either a federal, state or local entity, including orders issued to enforce isolation, quarantine, or conditional release.
  5. Employers may send employees home if they display COVID-19 symptoms.
  6. Employers must provide paid sick leave and compensate the employee under paid sick leave laws. If sick leave is exhausted, employees may be entitled to other paid leave (including vacation or paid time off), or job-protected unpaid leave.
  7. Employers may ask employees if they are experiencing COVID-19 symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record.
  8. Based on current CDC and local public health information and guidance, employers may measure employees’ body temperature for the limited purpose of evaluating the risk that employee’s presence poses to others in the workplace as a result of the COVID-19 pandemic.
  9. Employers should not identify any employee by name who is quarantined, tests positive for COVID-19, or has come in contact with someone who has the virus  in the workplace to ensure compliance with privacy laws. If an employee tests positive for or is suspected to have COVID-19, the employer will need to follow the most current local, state, or federal public health recommendations. Employers may notify affected employees in a way that does not reveal the personal health-related information of an employee. Employers may not confirm the health status of employees or communicate about employees’ health.
  10. Generally, when an employee requests a reasonable accommodation in the form of a change in schedule, telework, or leave, employers may request reasonable medical documentation confirming the existence of the disability and the need for reasonable accommodation. The DFEH guidance states that during the current pandemic, it may be impracticable for employees to obtain medical documentation of a COVID-19-related disability from their medical provider. To the extent employers require medical documentation in order to grant reasonable accommodations, the DFEH recommends waiving such requirements until such time as the employee can reasonably obtain documentation.

The publication is located at https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf

Should you have any questions regarding the California Department of Fair Employment and Housing Employment Information on COVID-19 guidance, please contact our Leech Tishman attorneys in the Employment & Labor Practice Group.

Philip A. Toomey is a Partner at Leech Tishman and Chair of the firm’s national Employment & Labor and Immigration Practice Groups. He is based in Leech Tishman’s LAX office and can be reached at (424) 738-4400 or ptoomey@leechtishman.com.

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