California Employers Facing Novel Employment Law Challenges Due to Coronoavirus

California employers are facing new and difficult challenges due to the spread of coronavirus. Many are facing difficult employment law compliance questions.

The spread of the novel coronavirus is presenting extraordinary challenges and the possibility of new responsibilities. Some California businesses are wondering if courts will eventually be asked to judge whether or not alleged actions taken by a company or employer contributed to the spread of the virus?

Increasingly Severe Guidelines & Defining the Legal Duties of California Employers:

The severity of guidelines imposed by California authorities are increasing; bans on movement, bans on gatherings, etc. Privately owned entities throughout the state are unsure how to act, and in some cases, are engaging in over-compliance with sporting event suspensions and workplace closures. Amid the various guidelines and recommendations, what are the legal duties of California employers during the coronavirus crisis? In order to define an employer's legal responsibilities in connection to employment law questions during the Covid-19 pandemic, it's best to pose the questions they are struggling to answer.

What Should a California Employer Do If an Employee Tests Positive for COVID-19?

If a California employee tests positive for COVID-19, the employer should issue a broad warning after considering the potential reach of the exposure, considering all those within any degree of its control. For example, in a 2013 case, the court held Long Island Railroad liable to a cashier at a diner. The railroad knew its employees were entering the diner carrying asbestos on their gear. While the railroad did not own the diner, the court held them liable because they term in the diner's lease allowed the railroad to dictate the diner's hours of operation, which amounted to exercising control over the restaurant. Since they held this "control," they also held a duty to warn. 

What Information Should a California Employer Include in a Warning?

If issuing a warning in response to an employee testing positive for Covid-19, the employer should include all known information. While actual risks may be minimal, the reported risk of death must be factored in alongside the duty to warn. Make the warning as complete as possible while addressing the privacy concerns of the affected employee.

What Protective Measures Should an Employer Take if an Employee Has Covid-19? 

After an employee tests positive for Covid-19, a California employer should take additional reasonable protective measures. When issuing warnings and recommendations, employers should also consider their degree of control over their employees and their employees' required job duties. For example, if an employee cannot complete their job without avoiding potentially affected places, a warning is not sufficient response to a positive Covide-19 test in the workplace. In this situation, the employer has a responsibility to provide employees with a safe workplace. Implement proper infection-control processes to minimize the chance that potentially infected areas and people do not spread the virus. If an employer has concrete information that a workplace may be infected (i.e., an employee's positive Covid-19 test result), there is an inherent duty to remedy the situation. Doing so may require thoroughly disinfecting the workplace and requesting that exposed employees self-quarantine.

How Can an Employer Protect Themselves If Their Workforce is Exposed?

If an employee in the workforce tests positive for Covid-19, the employer should alert authorities and follow official guidance to help show that they were actively seeking to implement appropriate and reasonable measures in response to the situation. It is also a good idea to consider how peers and competitors are responding to similar situations. Many companies have adopted processes that surpass the requirements put in place by health authorities, such as closing offices, closing venues, canceling events, etc. In future cases related to Covid-19, plaintiffs will present (and juries will be allowed to consider) information about measures other companies and groups instituted at the time as examples of appropriate conduct. 

Do California Employers Need to Do Anything if They Are Not Aware of Any Covid-19 Exposure?

If an employer is not aware of any specific contact with coronavirus in their workforce or their business, they can still take reasonable and appropriate actions.

Stay Informed: Be aware of the potential dangers. Designate someone as responsible for keeping informed of the spread of the epidemic and any developments in areas related to the company, any of the company's locations or any of the company's employees. Make sure employees know how to report any suspected exposure.

Alert Employees: Make sure employees are aware of the general risks of the coronavirus and offer them necessary guidance and information regarding how to stay safe, like washing hands regularly throughout the day. 

Implement Reasonable Preventive Measures: As always, employers should maintain a safe workplace. Right now, that means staying ahead of the coronavirus by minimizing chances of infection and exposure in the workplace. Depending on the type of business, this may mean canceling non-essential travel (particularly to areas with high rates of infection), providing sick workers with the chance to stay away from the workplace, encouraging workers to telecommute when possible, etc. Clean and disinfect to keep the workplace free of the SARS -CoV-2 spores that cause COVID-19. Preventive measures will help California employers avoid liability for creating an unsafe work environment.

In these unprecedented times, there are a myriad of potential legal issues related to the spread of the novel coronavirus. If you have questions about California employment law issues connected to the spread of Covid-19, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.