Some legal developments to emerge from the pandemic

Effective immediately, a new California law creates a rebuttable presumption through Jan. 1, 2023 that an employee’ sc ovid-19related illness or death is workrelated, triggering workers compensation benefits, if the employee tested positive for the disease within 14 days of an outbreak, as defined, a this specific workplace. An employer may re but the presumption with evidence of preventative measures the employer took to reduce transmission OF COVID-19 in the workplace and with evidence the employee had non-occupational risks of contracting the disease.

Gov. Gavin newsom also signed a measure requiring employers, effective Jan. 1, to provide written notification within one business day of potential exposure TOCOVID-19 to employees who “were on the premises at the same worksite” as an infectious individual with a laboratory-confirmed or medically diagnosed case of COVID-19.

Meanwhile, the federal Equal Employment Opportunity Commission (EEOC) updated its guidance for what an employer must, may and may not do in providing a safe workplace, respecting employee privacy rights, and accommodating employee disabilities during the pandemic.

Disability-related inquiries and medical exams

The latest San Diego County public health order requires employers to screen their employees FORC OVID-19 symptoms. The Eeoc says initial and periodic follow-up screenings do not violate the federal Americans with Disabilities Act “because an individual with the virus will pose a direct threat to the health of others.” The Ada does not interfere with an

employer’s compliance with directives frompublic health authorities. Part of that screening may include askingworkers who call in sick whether they have COVID-19 symptoms.

For similar reasons, an employermayask onsite employees if they have been diagnosed WITHCOVID-19 or have its symptoms andmay exclude fromtheworkplace employees answering in the affirmative. Anemployer maynot ask such questions of teleworking employees who are not physically interacting with co-workers, customers and others.

It offends the federal Genetic Information non discrimination Act( GINA) for an employer to ask onsite employees whether they have family members with COVID-19 or its symptoms. That questionwould be too narrowto assess anemployee’s exposure TOCOVID-19 anyway. Theagency says Ginadoes not prohibit an employer fromaskingmore broadly whether an employee has had contact with anyone diagnosed WITHCOVID-19 or whomayhave symptomsof the disease.

Anemployer alsomaybar any employee from the workplace who“refuses to have his temperature taken or refuses to answer questions about whether he HASCOVID-19, has symptomsofcovid-19, or has been tested for the disease.” Theeeocsuggests the employer askwhythe employee is refusing to disclose the requested information and, if the concern is privacy-related, to reassure the employee the information will not be disseminated broadly.

Medical confidentiality

Employersmayask an employee who has been diagnosed WITHCOVID-19 or HASCOVID-19 symptomsto identify those withwhom the employee has had contact through theworkplace. The employermaythen inform those individuals that someone at the location or on a particular floor has the disease or associated symptoms. Naming the employee is prohibited. “For small employers, co-workers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity.”

Where an employee is teleworking or on leave specifically because he has COVID-19 or its symptoms, the employer may disclose the employee’s teleworking or leave status without disclosing the reason, just as the employermaynot disclose the reason for any other medical leave.

Reasonable accommodation

According to the EEOC, an employer that has allowed employees to telework to stop the spread of COVID-19 need not extend that privilege to every disabled employee whowould prefer to continue teleworking as an accommodation. Anemployer has discretion in deciding howto accommodate an employee’s disability. “If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at theworkplace, then the employer can choose the alternative to telework.”