Post by pandemicworld on Mar 19, 2020 5:06:58 GMT
Office workers are increasingly being asked to work remotely in order to safeguard employees from contracting the coronavirus while at work.
As the spread of the disease widens, employers are imposing new workplace restrictions, which raise a host of legal questions. We answer them
As the coronavirus outbreak traverses the globe, sickening increasing numbers of young and old, it has swiftly upended our lives — disrupting our daily routines, our leisure activities and where and how we work. Companies from Twitter and Microsoft to Facebook and Lyft and everyone in between are increasingly telling employees to work from home and in some cases, to self-quarantine.
It’s a rapidly changing — and potentially safer — workplace given the ever-evolving memos and mandates, but how far can an employer go in imposing these new measures, and what rights do workers have? What if employees can’t work from home or don’t have the digital tools; what if they have to use sick time and have none left?
The Union-Tribune spoke to three San Diego attorneys who specialize in employment law to get their take on the changing landscape. Their answers to questions covering a wide variety of issues that will inevitably come up as the COVID-19 pandemic persists should provide some help for employers and their workers as they navigate what feels like uncharted waters.
Q: If I am required by my employer to work from home, do I have to?
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A: The quick answer is yes. As long as instructions or requirements imposed by the employer are not illegal, companies can tell employees to do whatever they want.
Q: But what if I don’t have the necessary equipment to work from home, is the employer obligated to provide me with what I need to do so?
A: In general, the employer is required to furnish the tools needed for workers to perform their “essential job functions” from home. Further, the employer should cover some portion of a worker’s phone and Internet costs, depending on the amount of usage, said attorney Harvey Berger, who represents both employers and employees in his practice. Your boss, though, could dictate that your job be performed without such equipment or with lower cost equipment.
Q: What if my job is such that I can’t work from home, do I have to take sick time or PTO or what if I don’t have enough sick time? Does the employer still have to pay me?
A: The California Department of Industrial Relations provides some guidance. For instance, an employee may choose — but may not be required — to take paid sick leave for preventative care, such as “where there has been exposure to COVID-19 or where the worker has traveled to a high-risk area.” That said, an employee “may be required to stay home from work without pay,” said employment lawyer Dan Eaton, who represents employers in his law practice. He also writes “The Law at Work” column for the Union-Tribune. “An employer also may choose to pay an employee under those circumstances.”
Employees, of course, may not want to exhaust all their vacation or sick time but may have no choice, says Josh Gruenberg, whose employment law practice focuses on representing employees. “But you know the employer will say, ‘No, we’re just taking precautions,’ so is that reasonable? It depends on how long the employer keeps the employee out.
“And employees don’t want to use PTO when they’re ready and willing to work. But if you’re a server and the employer doesn’t want the employee there, they can take you off the schedule, and the employee has the right to say I want to take my sick days, they’re just not going to want to.”
For those facing a job loss or a longer period of time off due to fallout from the coronavirus, there remains the option of filing for unemployment insurance.
Q: Increasingly, employers are imposing new rules regarding travel unrelated to their work. Can they require you to alter travel plans or impose self-quarantines for when you return from your trips?
A: The answer, in part, is embedded in California Labor Code section 6400, which obligates all California employers to “furnish employment and a place of employment that is safe and healthful for the employees therein.” Similarly, employers are obliged to not “require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful.”
While employers may strongly discourage their workers from personal travel, they probably cannot outright restrict such travel. However, they can impose orders to self-quarantine at home following trips, which begs the question of how will such workers be paid.
“Self-quarantine is legal,” said Berger. “In theory, the employer can say, ‘It’s two weeks, you’re not working, you’re on an unpaid suspension or you have to use PTO (paid time off). But for somebody who can work at home, they can say you need to work at home but they do need to reimburse you for any business expenses you incur. Everyone in California is now covered by paid sick leave so the question becomes can the employee use the paid sick leave if they’re not sick.”
In a frequently asked questions post by the California Department of Industrial Relations, it notes that the employer cannot require that the worker use paid sick leave. That is up to the employee.
“What needs to be said is that in times like these, we want cooler heads and reason to prevail and encourage a meaningful exchange of ideas with regard to how an employee can be accommodated,” Gruenberg said. “If a lawyer could argue that there’s a perception that the employee has a medical condition and the employer is preventing the worker from working because of the perception they have a medical condition, that could be discrimination.”
Q: Why are employers taking what some may see as draconian steps? They haven’t done so during normal flu seasons?
A: In some cases, it’s a general fear of the unknown, a viral outbreak that is still, to a degree, more mysterious than the flu and does not yet have a vaccine to substantially contain it. As much as employers would prefer to not resort to such measures — be it working remotely or virtually or not at all — they do have the legal obligation to maintain a safe and healthful workplace. The motivation for these latest workplace rules, which in some cases extend to shutting down businesses completely, is less about liability and much more about health and safety, the attorneys say.
Q: What kind of liability issues are employers facing in connection with the coronavirus?
A: One consequence of failing to protect workers from someone who has been exposed to COVID-19 are fines imposed by Cal-OSHA. Additionally, an employer who retaliates against a worker for refusing to come into a workplace that he or she suspects has been exposed to the virus could also carry fines. In general, employers’ liability for workplace exposure to the disease is most likely limited by workers’ compensation.
“What we’re faced with here, though, is a very broad unknown so the conservative approach is to take aggressive preventive measures,” Eaton said. “I understand the frustration but employees should understand this is not ill-motivated.”
Q: San Diego County schools will be closing starting Monday. What options do parents have if they need to stay home from work to care for their children?
A: A specific section of the California labor code covers that. Employees working for companies with 25 or more workers are permitted to take up to 40 hours of work each year to “address a child care provider or school emergency.” Such emergencies include a school closure or the sudden unavailability of a child care provider. Parents can take advantage of existing vacation, personal leave, or comp time during this period of time. Unpaid time off is also a possibility, although that is entirely up to the employer.
Q: Can my boss require me to submit to a medical exam?
A: There were varying opinions on this one. Gruenberg says yes, especially, if all employees are being asked to do the same thing. “Where employers get into trouble is when they start cherry-picking employees based on their national origin,” he offered. Eaton says it’s not totally clear, although the answer is probably no if the employee opts to self-quarantine for a period of time.
Q: Will my diagnosis remain confidential?
A: Yes, although the question arises as to the obligation of the employee to let his or employer know about the diagnosis in the interest of protecting co-workers. “Under the law, no employee has to tell their employer what their medical condition is,” Berger said, “but that would be a common-sense approach so other employees can protect themselves and their families.”
(The Associated Press)
As the coronavirus outbreak traverses the globe, sickening increasing numbers of young and old, it has swiftly upended our lives — disrupting our daily routines, our leisure activities and where and how we work. Companies from Twitter and Microsoft to Facebook and Lyft and everyone in between are increasingly telling employees to work from home and in some cases, to self-quarantine.
It’s a rapidly changing — and potentially safer — workplace given the ever-evolving memos and mandates, but how far can an employer go in imposing these new measures, and what rights do workers have? What if employees can’t work from home or don’t have the digital tools; what if they have to use sick time and have none left?
The Union-Tribune spoke to three San Diego attorneys who specialize in employment law to get their take on the changing landscape. Their answers to questions covering a wide variety of issues that will inevitably come up as the COVID-19 pandemic persists should provide some help for employers and their workers as they navigate what feels like uncharted waters.
Q: If I am required by my employer to work from home, do I have to?
Advertisement
A: The quick answer is yes. As long as instructions or requirements imposed by the employer are not illegal, companies can tell employees to do whatever they want.
Q: But what if I don’t have the necessary equipment to work from home, is the employer obligated to provide me with what I need to do so?
A: In general, the employer is required to furnish the tools needed for workers to perform their “essential job functions” from home. Further, the employer should cover some portion of a worker’s phone and Internet costs, depending on the amount of usage, said attorney Harvey Berger, who represents both employers and employees in his practice. Your boss, though, could dictate that your job be performed without such equipment or with lower cost equipment.
Q: What if my job is such that I can’t work from home, do I have to take sick time or PTO or what if I don’t have enough sick time? Does the employer still have to pay me?
A: The California Department of Industrial Relations provides some guidance. For instance, an employee may choose — but may not be required — to take paid sick leave for preventative care, such as “where there has been exposure to COVID-19 or where the worker has traveled to a high-risk area.” That said, an employee “may be required to stay home from work without pay,” said employment lawyer Dan Eaton, who represents employers in his law practice. He also writes “The Law at Work” column for the Union-Tribune. “An employer also may choose to pay an employee under those circumstances.”
Employees, of course, may not want to exhaust all their vacation or sick time but may have no choice, says Josh Gruenberg, whose employment law practice focuses on representing employees. “But you know the employer will say, ‘No, we’re just taking precautions,’ so is that reasonable? It depends on how long the employer keeps the employee out.
“And employees don’t want to use PTO when they’re ready and willing to work. But if you’re a server and the employer doesn’t want the employee there, they can take you off the schedule, and the employee has the right to say I want to take my sick days, they’re just not going to want to.”
For those facing a job loss or a longer period of time off due to fallout from the coronavirus, there remains the option of filing for unemployment insurance.
Q: Increasingly, employers are imposing new rules regarding travel unrelated to their work. Can they require you to alter travel plans or impose self-quarantines for when you return from your trips?
A: The answer, in part, is embedded in California Labor Code section 6400, which obligates all California employers to “furnish employment and a place of employment that is safe and healthful for the employees therein.” Similarly, employers are obliged to not “require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful.”
While employers may strongly discourage their workers from personal travel, they probably cannot outright restrict such travel. However, they can impose orders to self-quarantine at home following trips, which begs the question of how will such workers be paid.
“Self-quarantine is legal,” said Berger. “In theory, the employer can say, ‘It’s two weeks, you’re not working, you’re on an unpaid suspension or you have to use PTO (paid time off). But for somebody who can work at home, they can say you need to work at home but they do need to reimburse you for any business expenses you incur. Everyone in California is now covered by paid sick leave so the question becomes can the employee use the paid sick leave if they’re not sick.”
In a frequently asked questions post by the California Department of Industrial Relations, it notes that the employer cannot require that the worker use paid sick leave. That is up to the employee.
“What needs to be said is that in times like these, we want cooler heads and reason to prevail and encourage a meaningful exchange of ideas with regard to how an employee can be accommodated,” Gruenberg said. “If a lawyer could argue that there’s a perception that the employee has a medical condition and the employer is preventing the worker from working because of the perception they have a medical condition, that could be discrimination.”
Q: Why are employers taking what some may see as draconian steps? They haven’t done so during normal flu seasons?
A: In some cases, it’s a general fear of the unknown, a viral outbreak that is still, to a degree, more mysterious than the flu and does not yet have a vaccine to substantially contain it. As much as employers would prefer to not resort to such measures — be it working remotely or virtually or not at all — they do have the legal obligation to maintain a safe and healthful workplace. The motivation for these latest workplace rules, which in some cases extend to shutting down businesses completely, is less about liability and much more about health and safety, the attorneys say.
Q: What kind of liability issues are employers facing in connection with the coronavirus?
A: One consequence of failing to protect workers from someone who has been exposed to COVID-19 are fines imposed by Cal-OSHA. Additionally, an employer who retaliates against a worker for refusing to come into a workplace that he or she suspects has been exposed to the virus could also carry fines. In general, employers’ liability for workplace exposure to the disease is most likely limited by workers’ compensation.
“What we’re faced with here, though, is a very broad unknown so the conservative approach is to take aggressive preventive measures,” Eaton said. “I understand the frustration but employees should understand this is not ill-motivated.”
Q: San Diego County schools will be closing starting Monday. What options do parents have if they need to stay home from work to care for their children?
A: A specific section of the California labor code covers that. Employees working for companies with 25 or more workers are permitted to take up to 40 hours of work each year to “address a child care provider or school emergency.” Such emergencies include a school closure or the sudden unavailability of a child care provider. Parents can take advantage of existing vacation, personal leave, or comp time during this period of time. Unpaid time off is also a possibility, although that is entirely up to the employer.
Q: Can my boss require me to submit to a medical exam?
A: There were varying opinions on this one. Gruenberg says yes, especially, if all employees are being asked to do the same thing. “Where employers get into trouble is when they start cherry-picking employees based on their national origin,” he offered. Eaton says it’s not totally clear, although the answer is probably no if the employee opts to self-quarantine for a period of time.
Q: Will my diagnosis remain confidential?
A: Yes, although the question arises as to the obligation of the employee to let his or employer know about the diagnosis in the interest of protecting co-workers. “Under the law, no employee has to tell their employer what their medical condition is,” Berger said, “but that would be a common-sense approach so other employees can protect themselves and their families.”