Governor Newsom announced today that all dine-in at California restaurants must stop immediately for certain counties for the next 3 weeks, due to a recent spike in COVID-19 cases. Restaurants can continue outdoor dining and pick-up and delivery services.  Bars must close all operations even if they are operating outdoors.

As of July 1, 2020, the impacted counties include: Contra Costa, Fresno, Glenn, Imperial, Kern, Kings, Los Angeles, Merced,  Orange, Riverside, Sacramento, San Bernardino, San Joaquin, Santa Barbara, Santa Clara, Solano, Stanislaus, Tulare, and Ventura.

Here is a short video from our recent webinar describing the Governor’s actions today:

This Friday’s Five highlights five recent recordings of common questions we are hearing from California businesses during the last few weeks of June 2020.

1. Coronavirus Reasonable Accommodation Requests

ZLG partner, Anne McWilliams, gives an overview of employees who may qualify for certain accommodation requests during the coronavirus pandemic. Anthony Zaller follows with a discussion on a recent case (EEOC v. Baystate Medical Center), regarding an employee who believed they were unlawfully terminated.

 

2. US Supreme Court Ruling on Sex Discrimination and Title VII

ZLG partner, Anthony Zaller, discusses the new ruling by SCOTUS on Sex Discrimination in the workplace, as the Supreme Court holds that “An employer who fires an individual for merely being gay or transgender violates Title VII of the Civil Rights Act of 1964. Date of Recording: June 19, 2020.

 

3. LA County Health Department Inspections

ZLG partner, Anne McWilliams, discusses how the LA County Health Department is inspecting an increasing number of restaurants to make sure that they are compliant with California COVID-19 health guidelines. Date of Recording: June 19, 2020.

 

4. CDC’s “Return to Work Timeline” for Essential Workers Who Test Positive for COVID-19

Description: ZLG partner, Anthony Zaller, goes into detail about what an employer’s timeline should look like for bringing back essential workers that have tested positive for COVID-19.

 

5. New Face Cloth Covering Mandate in California

ZLG attorney, Rick Reyes, discusses the new mandate by the state of California, requiring all people in California-subject to certain restrictions-to wear face coverings when going out in public. Date of Recording: June 19, 2020.

 

Here is a short summary of five best practices for hotels reopening in Los Angeles (this is just a summary adopted from a presentation I provided to a group of hotel owners, and not a substitute for reviewing the applicable federal, state and local regulations):

1. Highlights from Los Angeles County’s protocol applicable to hotels.

  • Los Angeles County’s reopening protocol requires hotels to provide accommodations for vulnerable staff. It sets forth that vulnerable staff (those above age 65, those who are pregnant, and those with chronic health conditions) should be assigned work that can be done from home whenever possible, and should discuss any concerns with their healthcare provider or occupational health services to make appropriate decisions on returning to the workplace.
  • Hotels need to develop and have a plan in place for positive cases:
    • Isolate themselves; self-quarantine of all employees who had exposure; should consider plan to have quarantined employees tested.
    • If there are 3 or more known cases within 14 days the hotel must report to Dept. of Public Health.
  • Cleaning & Sanitizing: Consider reducing business hours for extra deep cleaning.
  • Written, worksite-specific COVID-19 plan
  • Copies of protocol distributed to all employees
  • Physical distancing:
    • Housekeeping is only performed when guests are not present
    • Elevators limited to 4 individuals or a family at a time and all riders must wear face covering
  • Facility Safety: To the extent possible, log guests: name, phone number and email address
  • Cleaning & Sanitizing: Housekeepers are provided PPE for cleaning.
    • Housekeeping employees are provided gloves when removing dirty linens. Dirty linen is placed in a single-use, sealed bag.
  • Copy of the protocol posted at all public entrances to facility
  • Guests are notified of policies and procedures prior to arrival
  • Signage is posed at the hotel (see examples in protocol)
    • Employee Health & Hygiene: Reinforce employee training on health and safety guidelines with periodic refresher trainings
    • Facility Safety: Log all employees that come on-premise for purposes of supporting public health contact tracing

2. Los Angeles County’s requirements for face coverings in hotels.

Employees

All employees who have contact with the public or other employees during their shift(s) are offered, at no cost, a cloth face covering. The covering is to be worn by the employee at all times during the workday when in contact or likely to come into contact with others. Employees need not wear a cloth face covering when the employee is alone.

Employees are instructed on the proper use of face covering, including the need to wash their face coverings daily.

Housekeepers and others who must enter guest rooms are directed to wear a cloth face covering.

Bellman/Porters are to wear face coverings and utilize gloves when handling guest baggage. Where possible, baggage deliveries are to be placed in the room by the guest.

Guests

Guests must wear face covering in elevators.

Guests are instructed that they must wear cloth face coverings whenever they are not eating and/or drinking; this includes upon entry to the facility, when walking anywhere in the facility, and when using the restrooms. This applies to all adults and to children over the age of 2. Only individuals with chronic respiratory conditions or other medical conditions that make the use of a face covering hazardous are exempted from this requirement.

Customers who refuse to wear a cloth face covering may be refused service and asked to leave.

Guests will be provided face coverings upon entry to the hotel if they do not have one.

3. Los Angeles City Guidelines.

  • Process to log all employees on site
  • If there is a positive case at the hotel:
    • Inform guests (not clear on this requirement)
    • Ensure all those who have come in contact are tested before returning to work
    • If testing is not possible, inform coworkers that had close contact to self-quarantine and self-monitor for symptoms per public health guidance
    • Consider written plan on how to inform coworkers and how they can get tested/self-quarantine
  • Refresher training courses on social distancing, cleaning, and PPE
  • Provide copy of COVID-19 related safety and health plan to employees and document receipt
  • Presumptive case in affected guest room: shall not be returned to service until undergoing an enhanced cleaning and disinfecting utilizing EPA approved products within CDC guidelines, ideally by a licensed 3rd party
  • Examples of signs located at end of guidance: https://corona-virus.la/sites/default/files/inline-files/20200612%20LA%20Resuming%20Operations%20Playbook%20-%20Hotels.pdf

4. Compliance with City of Los Angeles 5-day notice and priority of recall ordinance.

Under City of Los Angeles Ordinance 186602, the City requires covered employers to offer laid off workers their positions or similar positions based on the workers seniority with the employer.  The Ordinance defines “Hotel Employer” as “owner, operator or manager of a residential building in the City designated or used for public lodging or other related service for the public and either contains 50 or more guestrooms or has earned gross receipts in 2019 exceeding $5 million.  A Hotel Employer includes the owner, operator, manager or lessee of any restaurant physically located on hotel premises.”

Workers have no less than 5 business days to accept or decline the offer for the position.

5. To the extent a hotel operates another facility, such as a restaurant or golf course, the applicable protocol for those industries must also be followed.

County of Los Angeles protocol for in-person dining: http://www.publichealth.lacounty.gov/media/Coronavirus/docs/protocols/Reopening_Restaurants.pdf

County of Los Angeles protocol for golf courses: http://www.publichealth.lacounty.gov/media/Coronavirus/docs/protocols/Reopening-GolfCourses.pdf

The City of Los Angeles website:  https://corona-virus.la/Business

City of Los Angeles Protocol for restaurants: http://publichealth.lacounty.gov/media/coronavirus/docs/protocols/Reopening_Restaurants.pdf

The EEOC provided additional information this week on its website, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”  Here are five new questions and answers published by the EEOC employers should understand:

D.13.  Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition? (6/11/20)

No.  Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment.  The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

Of course, an employer is free to provide such flexibilities if it chooses to do so.  An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.

G.6.  As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements? (6/11/20)

Yes.  The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact – if they wish – to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return.  If requests are received in advance, the employer may begin the interactive process. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions.

An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request – for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities.

Either approach is consistent with the ADEA, the ADA, and the May 29, 2020 CDC guidance that emphasizes the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness.

Regardless of the approach, however, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy.

H.1.  The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group.  Do employees age 65 and over have protections under the federal employment discrimination laws? (6/11/20)

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older.  The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age.  However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.

Workers age 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities.  As such, they may request reasonable accommodation for their disability as opposed to their age.

J.1.  Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy? (6/11/20)

No.  Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy.  Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.

J.2.  Is there a right to accommodation based on pregnancy during the pandemic? (6/11/20)

There are two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy.

First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability.  If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.

Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work.  This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.  Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.

Other questions addressed by the EEOC include:

E.3.  How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be Asian?

E.4.  An employer learns that an employee who is teleworking due to the pandemic is sending harassing emails to another worker.  What actions should the employer take?

G.7.  What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition?

Remember, California state law may differ from the guidance issued by the EEOC.

We have received a lot of questions from restaurant businesses regarding the requirements of face coverings for employees and customers under the County of Los Angeles’ reopening guidelines.  Here is a compilation of the face covering requirements set forth in the County of Los Angeles’ Protocol for Restaurants Opening for On-Site Dining:

Employees

  • All employees who have contact with the public or other employees during their shift(s) are offered, at no cost, a cloth face The covering is to be worn by the employee at all times during the workday when in contact or likely to come into contact with others. Employees need not wear a cloth face covering when the employee is alone.
  • Face shields are provided and worn by wait staff and other employees when servicing customers not wearing a cloth face covering to eat and drink. The face shield is to be worn in addition to the cloth face covering. Cloth face coverings protect others from the wearer’s droplets; face shields help protect the wearer from other’s droplets.
  • All employees, vendors and delivery personnel have been provided instructions regarding maintaining physical distancing and the use face coverings when around others.
  • Physical distancing protocols should be used in any office areas, kitchens, pantries, walk-in freezers, or other high density high-traffic employee areas. Incidental contact is to be expected, however, the goal is to limit this to less than 15 minutes, preferably 10 minutes, and the employees are always wearing their face coverings.
  • Dishwashers are provided with equipment to protect their eyes, nose and mouth from contamination due to splash using a combination of face coverings, protective glasses, and/or face shields. Dishwashers are provided impermeable aprons and required to change frequently. Reusable protective equipment such as face shields and glasses are to be properly disinfected between uses.

Customers

  • Customers are instructed that they must wear cloth face coverings whenever they are not eating and/or drinking; this includes upon entry to the facility, when walking anywhere in the facility, and when using the restrooms. This applies to all adults and to children over the age of 2. Only individuals with chronic respiratory conditions or other medical conditions that make the use of a face covering hazardous are exempted from this requirement.
  • Customers may remove cloth face coverings while seated at a table and eating and/or drinking.
  • Customers who refuse to wear a cloth face covering may be refused service and asked to leave.

Notification Requirements

  • A sign notifying customers to use hand sanitizer and to wear a face covering when not eating or drinking is also posted at all entrances.
  • Online outlets of the establishment (website, social media, etc.) provide clear information about facility hours, required use of face coverings, policies in regard to preordering, reservations, prepayment, pickup and/or delivery and other relevant issues.

 

 

[06/26/20 UPDATE: Not so fast Bay Area!  Given the current conditions due to coronavirus, Hayward’s and San Carlos’ city councils voted to delay the local minimum wage increase, which was previously scheduled for July 1, 2020.  Now, the increase in the cities’ minimum wage will align with that of the state, at least with respect to timing.  That is, effective January 1, 2020, Hayward’s minimum wage will increase to $15 for large employers (26 or more employees) and $14 for small employers (25 or less employees).  Similarly, San Carlo’s minimum wage will increase to $15, plus the annual change in Consumer Price Index, for a maximum of $15.53 per hour.  Employers doing business in these two cities will now have some breathing room, at least with respect to minimum wage compliance.]

As employers continue to assess, incorporate and comply with the recently enacted state and local requirements due to COVID-19, it is easy to lose track of the basic wage and hour requirements. And, as more and more businesses continue to reopen, it is imperative to ensure compliance with both state and local minimum wage requirements. This guide is designed to assist employers in complying with state and local/city minimum wage requirements.

 State Minimum Wage

California has a two-tier minimum wage requirement, depending on the employer’s size.  Currently, large employers–those with 26 or more employees–are required to pay a minimum wage of $13 per hour.  Small employers–those with 25 or less employees–must pay their employees a minimum wage of $12 per hour.

Effective January 1, 2021, California minimum wage rates will increase from $12 to $13 per hour and $13 to $14 per hour for small and large employers, respectively.

 Local Minimum Wages

Most importantly, employers must pay close attention to their local jurisdiction(s) (e.g., city) minimum wage requirements.  Various cities have enacted minimum wage ordinances setting a higher rate vis-à-vis the state.  Although the following is not an exhaustive list, it includes those cities where minimum wage is scheduled to increase effective July 1, 2020.

If your company is doing business in any of the cities below, ensure that wages are being paid accordingly.

City

 Applicable Minimum Wage

(Per Hour)

Other City-Specific Requirements
Alameda  

Current Minimum Wage: $13.50

Effective 07/01/20: $15

 

  

None
Berkeley Current Minimum Wage: $15.59

Effective 07/01/20: $16.07

 Defining Employee: The Berkeley City Ordinance defines “employee” as any person who works at least 2 hours per week for an employer within the city.

Recordkeeping: The City requires employers to retain payroll records for a period of 4 years, as opposed to the State requirement of 3 years.

 
Emeryville Current Minimum Wage: $16.30

Effective 07/01/20: $16.84

  

None

 

 
Fremont Large Employers (26 or more employees)

Current Minimum Wage: $13.50

Effective 07/01/20: $15

Small Employers (25 or less employees)

Current Minimum Wage: $12

Effective 07/01/20: $13.50

 

 Recordkeeping: The City requires employers to retain payroll records for a period of 4 years, as opposed to the State requirement of 3 years.
Los Angeles Large Employers (26 or more employees)

Current Minimum Wage: $14.25

Effective 07/01/20: $15

 

Small Employers (25 or less employees)

Current Minimum Wage: $13.25

Effective 07/01/20: $14.25

 

 Los Angeles City Living Wage Ordinance: The City’s Living Wage Ordinance requires City Contractors (employers who have a service contract with the City) to pay specific wage rates, which depend on whether the employer provides health benefits to its employees.  City Contractors are also required to provide employees with time off as required by the Living Wage Ordinance.

Citywide Hotel Worker Minimum Wage Ordinance: The City of Los Angeles requires hotel employers (those with 150 or more guest rooms) to (1) pay their employees a specific minimum wage; (2) provide 96 hours of paid time off per year; and, (3) at least 80 additional hours of uncompensated time off per year.

Paid Sick Leave: Employers must comply with the City’s paid sick leave requirements, which provide greater benefits than the State’s paid sick leave.
Malibu Large Employers (26 or more employees)

Current Minimum Wage: $14.25

Effective 07/01/20: $15

 

Small Employers (25 or less employees)

Current Minimum Wage: $13.25

Effective 07/01/20: $14.25

 

None
Novato Very Large Employers (100 or more employees)

Current Minimum Wage: $13

Effective 07/01/20: $15

 

Large Employers (between 26 and 99 employees)

Current Minimum Wage: $13

Effective 07/01/20: $14

 

Small Employers (25 or less employees)

Current Minimum Wage: $12

Effective 07/01/20: $13

 

None
Pasadena Large Employers (26 or more employees)

Current Minimum Wage: $14.25

Effective 07/01/20: $15

 

Small Employers (25 or less employees)

Current Minimum Wage: $13.25

Effective 07/01/20: $14.25

 

None
San Francisco Current Minimum Wage: $15.59

Effective 07/01/20: $16.07

 A small number of Government Supported Employees are subject to a minimum wage of $13.79.  That rate will increase to $14.22 on 07/01/20.
San Leandro Current Minimum Wage: $14

Effective 07/01/20: $15

None
Santa Monica Large Employers (26 or more employees)

Current Minimum Wage: $14.25

Effective 07/01/20: $15

 

Small Employers (25 or less employees)

Current Minimum Wage: $13.25

Effective 07/01/20: $14.25

 Hotel Workers: Santa Monica hotel workers are subject to a specific hourly rate of $16.63.  This rate will increase on 07/01/20.

Paid Sick Leave: The City requires employers to provide 40 hours (small employers) or 72 hours (larger employers) of paid sick leave.

Understandably, minimum wage requirements are not at the top of the list in employers’ agendas.  Nonetheless, all companies must continue to comply with state and local requirements, and ensure that all wages are being paid as mandated by law.

This Friday’s Five focuses on recent updates from my firm’s webinars discussing issues facing California employers during the reopening process:

1. Paycheck Protection Program Flexibility Act of 2020 signed by President Trump on June 5, 2020

The Paycheck Protection Program Flexibility Act of 2020 was signed by President Trump this morning, June 5, 2020. We provide an overview of this new bill and what it means for employers:

 

2. County-Specific Guidelines For Reopening: Los Angeles County

 

3. Los Angeles County Moves Forward With Reopening For Businesses, Including Dine-in Eating

 

4. COVID-19 Employment Litigation Risks – Potential Litigation

 

5. Which Employees are Entitled to COVID-19 Related Accommodations?

 

 

Today, May 29, 2020, the County of Los Angeles received a variance to move forward to reopen many businesses, which includes permitting dine-in eating at restaurants as soon as this evening. Here are five key issues restaurants operating in the the County of Los Angeles and the City of Los Angeles need to know:

1. Dine-in eating can resume on 5/29/20 as long as the restaurants comply with the protocols published by the county.

As of the time of the writing of this post, the county had not published the protocols.  We will update with links to the protocols as we learn of them.  At today’s L.A. County update, it was confirmed that restaurants who comply with the protocols (once they are published) [update: the L.A. County protocol for restaurants can be found here] may reopen as soon as tonight for dine-in services:

 

2. The County of LA published some guidelines for restaurants.

This afternoon the County published the following requirements for dine-in eating at restaurants:

In-person dining in restaurants

  • Physical distancing measures will be in place.
  • Employees and customers will be screened for symptoms, including cough and fever. Patrons feeling unwell should not eat at a restaurant.
  • Outdoor seating and curbside pickup are prioritized.
  • Reservations will be encouraged.
  • Customers will be asked to wait for their table in their cars or outside the restaurant to prevent crowds from gathering.
  • Diners must wear cloth face coverings when not eating.
  • Bar areas will be closed.
  • Occupancy capacity will be limited to 60% for the next three weeks.

3. Everyone must continue to follow physical distancing and infection control protocols and wear a cloth face covering when in contact with others not in your household.

4. City of Los Angeles publish guidelines for planning to reopen restaurants in the City of Los Angeles.

Mayor Garcetti is expected to discuss Los Angeles City’s requirements for restaurants operating within the city at his news conference at 5 p.m. today. These requirements could vary from the County’s requirements.  Our prior article on the City of Los Angeles’ reopening guidelines can be read here.

5. Useful links.

The County of Los Angeles website: https://covid19.lacounty.gov/covid19-news/hair-salons-barbershops-and-in-person-dining-to-reopen-safeguards/

The City of Los Angeles website:  https://corona-virus.la/Business

The City of Los Angeles announced the LA Al Fresco project to support outdoor dining.

Through LA Al Fresco, the City will offer streamlined, immediate approval for eligible restaurants to provide outdoor dining in the following areas:

  • Sidewalks
  • Private Parking Lots

More information on LA Al Fresco can be found here.

We will update this post as more information becomes available.

Not receiving a lot of attention this week, the City of Los Angeles published guides for businesses to begin to prepare to reopen.  Eater.com is reporting that the guide for restaurants and bars was placed on the City’s website on May 26 (even though the publication date of the guide is May 21).  The guides are for industries that are not yet permitted to reopen, but provide information to prepare for reopening.  These industries include:

The City’s website states that guides for the following industries will be published shortly:

  • Film production
  • Higher education
  • Sports & music venue

The website also provides guides for businesses that have been permitted to reopen, which include:

Restaurants & Bars – Preparation For Dine-in

The guide published for restaurants and bars sets forth similar requirements as other cities and counties.

In regards to employee health, the guidance provides recommendations, including the following:

Employee Health and Personal Hygiene
– Ask employees to confirm (and document confirmation) they have not experienced COVID-19 CDC-defined symptoms, including fever, cough, and shortness of breath, for 14 days prior to return

– Require employees who have COVID-19 CDC-defined symptoms to remain home until they are symptom-free for three days without medication

– If an employee tests positive for COVID-19, inform coworkers and customers if applicable and ensure all other coworkers are tested before returning to work; if testing is not possible inform coworkers that had close contact to self-quarantine and self-monitor for symptoms per public health guidance

– Consider developing a written plan on how to inform coworkers of positive case and how they can get tested / self-quarantine

The guidelines also set forth that restaurants and bars will need to log all employees that come on-premise for purposes of supporting public health contact tracing.

The guidelines also provide some recommendations for employee communications:

  • Communicate frequently to make employees aware of operational changes for health and safety
  • Provide details of the changes to employees, in writing
  • Encourage employees to participate and comply with new work practices
  • Conduct demonstrations and training to introduce new skills to staff before activities officially resume; examples include:
  • How to practice physical distancing/sanitizing at workstations and within dining areas
  • How to follow floor markings in facility
  • How to handle essential interactions with others at work
  • Consider a variety of communication channels and materials, including email, text messages, posters/digital displays
  • Consider communications focused on
  • Why the facility is safe and how it is following state guidelines
  • Instructions for how to prepare for arrival
  • Overview of what to expect when returning employees arrive, including new entrance guidelines, supplies, sanitation requirements, capacity limits, etc.

Even during a worldwide pandemic, an employer’s legal requirements and obligations under anti-discrimination, harassment, and retaliation statutes remain in full effect.  Even though this may not be at the top of a business’ list, and given the phased reopening of the economy, employers should take the time to audit their internal policies and processes to ensure compliance with the law.  This article provides a brief overview (and review) of discrimination, harassment and retaliation laws in the workplace.

Discrimination

Anti-Discrimination Law 101: The Legal Basics

The most relevant anti-discrimination federal and state include:

  • Title VII of the Civil Rights Act of 1964
  • The Age Discrimination in Employment Act (ADEA)
  • The California Fair Employment and Housing Act (FEHA)
  • The California Fair Pay Act

But what exactly do these laws prohibit?  Under these statutes, it is unlawful to discriminate against individuals belonging to a certain protected class with respect to any term, condition, or privilege of employment – including hiring, firing, promotion, job assignments, etc.  “Protected classes” can include: age, marital status, mental or physical disability, race and color, religion, sex/gender and national origin.

California law is more expansive than federal law, as it prohibits discrimination on the basis of “perception” or “association.”  In other words, even if an employee is not actually a member of the protected class, but is perceived as being a member of or associated with one or more of these protected classes, employers must not engage in discriminatory actions.

Note that, even if a business’ action or decision may be neutral on their face, they may still violate anti-discrimination laws if they have a disparate impact upon execution.  Thus, employers should pay close attention to not only its policies and practices as written, but also in practice.

Remember: As a California employer, you are obligated to take all reasonable steps to not only prevent discrimination from occurring in the workplace, but also to promptly correct any discriminatory conduct.

COVID-19 Implications

Having a basic understanding of discrimination laws, how might this relate to COVID-19 in the workplace?

Discrimination may come up in three main situations: rehiring practices, leaves of absence, and testing in the workplace.

Rehiring: Be Objective

With respect to rehiring, it is pivotal that employers develop and use an objective, non-discriminatory and legitimate rehiring plan or criteria.  The “basis” or “bases” in which the employer will be deciding which employees to rehire may have severe implications and run afoul of anti-discrimination laws.

For example, the Center for Disease Control may deem employees who are 65 years or older as Higher Risk.  Yet, this should not -in and of itself- automatically disqualify those older employees from being considered for rehiring.  That would be a clear example of age discrimination. Likewise, an individual’s race or national origin (e.g., Asian or Asian American) should have no bearing in an employer’s rehiring decisions.

Leaves of Absence: Be Consistent

Given the pandemic, it is inevitable that many employees will submit requests for leave either under the Families First Coronavirus Response Act (FFCRA) or other state or local paid sick leave laws.  It is imperative that employers administer and handle all requests in a non-discriminatory manner.  Regardless of whether the requests are granted or denied, employers must be consistent.  An employee’s race, gender, age or any other protected category should have no bearing in a company’s decision of either granting or denying the request.

Testing in the Workplace: Do Not Single Out Employees

As testing methods for COVID-19 become more readily available and a more common practice in the workplace, thread with caution.  Ensure that certain employees (e.g., older or disabled employees) are not being singled out.  Do not require such employees to undergo additional testing or other safety precautions, which are not required of other employees.

Harassment

Harassment Law 101: The Legal Basics

Turning to harassment, both Title VII of the Civil Rights Act and the FEHA prohibit employers from harassing workers on the basis of certain protected traits.  Note that harassment is not just sexual harassment, but can also be harassment on the basis of race, religion, national origin, or medical condition among others.  Harassment. Involves conduct that is so frequent or severe that it creates a hostile or offensive work environment.

Consequently, harassment can take a number of different forms including:

  • Unwanted sexual advances.
  • Denigrating jokes.
  • Insulting comments.
  • Any other hostile at that may interfere with the performance of the employee’s job duties.

Under California law, an employer is liable for co-worker harassment if the employer knew –or should have known–about the harassing conduct and failed to take immediate and appropriate action.  Moreover, employers are liable for harassment committed by supervisors regardless of whether the employer knew or should have known of the conduct (this is known as strict liability).

Remember: As a California employer, you have an affirmative duty to take reasonable steps necessary to prevent and to promptly correct harassing conduct in the workplace.

COVID-19 Implications: Bullying and Inappropriate Jokes

COVID-19 may provide fertile ground for bullying or inappropriate jokes in the workplace, as there may exist a social stigma against Asian or Asian-American employees.  It is possible that co-workers may refer (even if jokingly, consciously or unconsciously) to coronavirus as the “Chinese Virus” or the “Kung Flu.”  This could very well constitute unlawful harassment.  Or perhaps, employees or supervisors may harass Asian or Asian-American employees by telling them that they should not come to work because they are the “virus carriers.”

So, what should employers do to avoid these situations?

Employers should use this time to revisit the company’s anti-harassment policies, as well as to ensure that effective complaint mechanisms (for reporting harassment or other issues in the workplace) are well-established.

While anti-harassment training may not be at the top of an employer’s to-do list, it may be worth considering providing a refresher training course for managers and employees.  Remember that California employers with 50 or more employees must train supervisors and employees every 2 years).

Taking these obligations and recommendations seriously will prevent unlawful conduct from occurring, help your company avoid or decrease liability and make the workplace a comfortable environment for everyone.

Retaliation

Retaliation Law 101: The Legal Basics

Both federal and state laws protect employees and applicants from employer retaliation.  At its core, retaliation involves an adverse action taken against an employee who is engaging in a protected activity such as:

  • Opposing a practice that is unlawful under the law;
  • Filing a charge or participating in any manner in any investigation or proceeding under an anti-discrimination statute;
  • Participating in activities to further the enforcement of employment discrimination laws;
  • Disclosing information to a government or law enforcement agency that the employee believes is a violation of state or federal statute. See Labor Code sections 98.6 and 1102.5.

COVID-19 Implications

The interplay between retaliation and COVID-19 could manifest in situations where the employee raises a good-faith complaint regarding the workplace, files a complaint with a law or health enforcement agency, and when an employee requests a leave of absence.

Employee Complaints: Reporting In and Out

On the one hand, it is possible that an employee may raise an internal complaint with the company in relation to personal protective equipment (PPE) or other similar safety issues. Indeed, it is plausible that an employee may complaint because the company is not providing sufficient PPE or because whatever PPE is being provided is simply ineffective.   Likewise, the employee may raise concerns with how the employer is handling sanitization and disinfecting protocols in the workplace.  Alternatively, the employee may “blow the whistle” and report out an employer for failing to implement county or city health department directives for addressing COVID-19 concerns in the workplace.  Regardless of who the complaint is being made to, employers must refrain from retaliating against the employee.  Instead, take these complaints seriously and work with the employee or agency in addressing the underlying issues.

Leaves of Absence: Watch for Anti-Retaliation Provisions

As previously discussed, employees will continue to request leave of absence for COVID-19 related reasons.   Therefore, employers must be aware that leave of absence laws contain their own anti-retaliation provisions.  Indeed, the FFCRA, traditional FMLA, and California paid sick leave all explicitly prohibit an employer from retaliating against an employee for exercising their right under these leave laws.  Protected leave equals retaliation outlawed.

Employers need not only adapt to the “new normal,” but must continue to comply with traditional, pre-existing legal norms.  This article described some of the most salient issues that employers will be faced in the foreseeable future.  As always, employers should consult with legal counsel in handling their business-specific circumstances.