Kahana & Feld’s California business clients have been reaching out to us with labor and employment law related questions about the coronavirus (COVID-19) pandemic. Below are general answers to some of these questions. Due to the fast-changing circumstances of the pandemic, and the unprecedent steps federal, state, county and local governments have taken to slow down the pandemic, we cannot always provide definitive answers. However, we hope these general answers provide some guidelines to how employers might proceed in the coming weeks.
- Is an employee diagnosed with the coronavirus entitled to workers’ compensation benefits?
It depends. It is important to note that the workers’ compensation system is a no-fault system, meaning that an employee claiming a work-related injury does not need to prove negligence on the part of the employer. Instead, the employee need only prove that the injury occurred at work and was proximately caused by his or her employment. Additionally, a virus is not an “injury” but is instead analyzed under state law to determine if it is an “occupational disease.” To be an occupational disease, an employee must generally show two things: (1) the illness or disease must be “occupational,” meaning that it arose out of and was in the course of employment; and (2) the illness or disease must arise out of or be caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.
The general test in determining whether an injury “arises out of and in the course of employment” is whether the employee was involved in some activity where he or she was benefitting the employer and was exposed to the virus. Compensability for a workers’ compensation claim will be determined on a case-by-case basis. The key point will be whether the employee contracted the virus at work and whether the contraction of the disease was “peculiar” to his or her employment. Even if the employer takes all of the right steps to protect employees from exposure, a compensable claim may be determined where an employee can show that he or she contracted the virus after an exposure, the exposure was peculiar to the work, and there are no alternative means of exposure demonstrated.
- Is an employee diagnosed with the coronavirus entitled to state disability benefits?
Probably. Disability insurance benefits through the California Employment Development Department (EDD) provide short-term payments to eligible workers who have a full or partial loss of wages due to a non-work-related illness, injury, or pregnancy. Such benefits may cover a disability caused by being exposed to or contracting the coronavirus. If an employee is unable to work due to having, or being exposed to, the coronavirus (certified by a medical professional), employees can file a disability insurance claim (although, it should be noted, simply filing the claim does not necessarily mean the employee will be entitled to disability insurance benefits). See the following link: https://www.edd.ca.gov/about_edd/coronavirus-2019/faqs.htm
- Can OSHA or Cal/OSHA cite an employer for exposing its workforce to the coronavirus without protective measures?
Probably. There is no specific Occupational Safety and Health Act (OSH Act) standard covering coronavirus. However, some OSH Act requirements may apply to preventing occupational exposure to coronavirus. Among the most relevant are: (1) OSH Act’s Personal Protective Equipment standards, which require using gloves, eye and face protection, and respiratory protection in certain situations; (2) when respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard; and (3) The General Duty Clause, which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
Employers should also review the Occupational Safety and Health Administration’s Guidance on Preparing Workplaces for an Influenza Pandemic for additional information on preparing for, and dealing with, an outbreak: https://www.osha.gov/Publications/influenza_pandemic.html
The California Division of Occupational Safety and Health (Cal/OSHA) Aerosol Transmissible Diseases (ATD) standard is aimed at preventing worker illness from infectious diseases that can be transmitted by inhaling air that contains viruses (including coronavirus), bacteria or other disease-causing organisms. While the Cal/OSHA ATD standard is only mandatory for certain healthcare employers in California, it may provide useful guidance for protecting other workers exposed to coronavirus. See the following link: https://www.dir.ca.gov/dosh/coronavirus/General-Industry.html
- Is an employee who is out of work on a leave of absence due to either being exposed to or contracting the coronavirus entitled to pay?
Generally yes, depending on the circumstances. Eligible employees who work for employers covered by the Families First Coronavirus Response Act will be entitled to a limited period of paid sick leave and an extended period of unpaid or partially paid leave for a public health emergency. (See our Legal Alert on the Families First Coronavirus Response Act, here.) Furthermore, California requires employers to provide their employees with at least three (3) days of paid sick leave (some cities and municipalities require more than three (3) days of paid sick leave). So, if an employee is out on a leave of absence due to the coronavirus, an employer would have to pay him or her for at least three (3) days of sick leave under California law if the employee chooses to use paid sick leave for that purpose. Finally, if an employer has a paid vacation or paid time off policy, employees who have accrued but unused paid vacation or paid time off can typically choose to use that paid time to cover a leave of absence related to the coronavirus. Employers should review the California Labor Commissioner’s FAQ about paid sick leave and coronavirus: https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm
- Can an employer ask an employee to provide a doctor’s note when he or she returns from a leave of absence because he or she was exposed to or contracted the coronavirus?
It is not clear whether employers are legally allowed to request a doctor’s note from an employee returning to work after having been exposed to or contracted the coronavirus, and under what circumstances employers may request such a note. For example, under San Francisco’s Paid Sick Leave Ordinance, employers may not require a doctor’s note or other documentation for the use of paid sick leave of three or few consecutive days of work. It is important to note that the Centers for Disease Control and Prevention is recommending that employers do not require such documentation in this pandemic, since medical providers are likely to be overwhelmed with requests as the coronavirus pandemic spreads.
- Are employees entitled to refuse to work if they believe they are in danger of being exposed to or contracting the coronavirus?
It depends. Employees are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSH Act discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”
The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before the Occupational Health and Safety Administration (OSHA) could investigate the problem. Requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold. Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work. Once again, this guidance is general, and employers must determine when this unusual state exists in their workplace before determining whether it is permissible for employees to refuse to work.
- What steps can employers take to prevent infection of the coronavirus in the workplace?
The best way to prevent infection is to avoid exposure. Perhaps the most important message employers can give to employees is to stay home if sick. In addition, employers should instruct their employees to take the same actions they would take to avoid the seasonal flu. See the Centers for Disease Control and Prevention website regarding guidance for businesses and employers on how to prevent infection in the workplace: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html