LOS ANGELES & SAN FRANCISCO
www.dailyjournal.com
Getting back to work: the employer’s risks
By Arthur F. Silbergeld
and Kacey Riccomini
A
s employers contem-
plate re-opening busi-
nesses and returning
employees to work, they face a
number of litigation risks from
the very workers they are put-
ting back on the active payroll.
Carefully addressing key legal
issues may help to ensure a
healthy workforce and avoid
the more expensive of these
risks.
OSHA Issues. Cal-OSHA
requires that employers main-
tain a workplace that is safe
and healthful. Labor Code Sec-
tion 6300 et seq. Among many
considerations are: immedi-
ately sending employees with
respiratory symptoms home,
offering training on coughing
and sneezing behavior, hav-
ing sufficient supplies in the
washrooms and hand sanitizer
in visible placements, provid-
ing protective equipment, and
even redesigning workspace
to enable better social distanc-
ing. Employers may need to
provide, and employees may
need to wear masks and, in
some cases, gloves for some
time. If employees return to
work and then one of them
has COVID-19 symptoms, the
employer may be obligated to
notify co-workers with whom
he or she has had contact of
potential exposure. Failure
to do so could lead to a law-
suit by any other employees
who then come down with the
MONDAY, MAY 4, 2020
PERSPECTIVE
symptoms. While difficult to such as fever, chills, cough, room/wysk/wysk_ada_rehabil-
prove, the litigation would shortness of breath, or other itation_act_coronavirus.cfm.
be costly. Employers should symptoms which the CDC has
review Centers for Disease noted, including loss of smell Absences/Returning to Work
Control and Prevention guide- and gastrointestinal problems While the ADA and the Califor-
lines, including its Traveler’s like diarrhea and vomiting. nia Family Rights Act, among
Health Notice prior to allow- Employers have wider dis- others, allow employers to re-
ing employees to travel. Fur- cretion both on testing of em- quire a medical certification
that an employee is fit to return
If employees return to work and then to work, most health care pro-
viders may be too busy or too
one of them has COVID-19 symptoms, backlogged to accommodate all
the employer may be obligated to notify of the requests of their patients
who are going back to work.
coworkers with whom he or she has had When certification is not possi-
contact of potential exposure. ble, a form from a local clinic
may be requested or, at the very
ther guidance is at www.dir. ployees as they return to work least, a form which the employ-
ca.gov/ dosh/coronavirus/Gen- and taking their temperatures. er prepares for each employee
eral-Industry. html. Employers Test kits are still largely un- to sign stating that he or she no
in large office buildings should available, and may not come longer has the virus or its symp-
know procedures the building into employers’ hands before toms, or does not currently
management has established businesses are allowed to re- symptoms, and has not know-
for sanitizing public areas and open. However, digital ther- ingly had personal contact with
restrooms, parking structures, mometers can be easily pur- anyone who tested positive, had
security desks, elevators, es- chased. As employees line up symptoms, or travelled to areas
calators, and entryways. Alerts (perhaps each day) to have their where symptoms were known
should be available for all ten- temperatures taken, some few to be prevalent.
ants if any occupant tests pos- will have higher than normal
itive. temperatures and be told they The Privacy Issue
cannot come to work. Any one The California Constitution
The Testing Issue of them may have other symp- protects the right of privacy, as
The Equal Employment Op- toms that have been associated do various laws and many court
portunity Commission released with COVID-19. Moreover, if decisions affecting personal
guidance on April 23 covering this occurs on the second or and health information. HIPPA
COVID-19, essentially allow- third day after an employee and the recently enacted Cali-
ing employers to undertake has returned to work, whether fornia Consumer Privacy Act
steps that might otherwise cre- there is an obligation to notify also are germane when dealing
ate issues under the Americans co-workers that one or more with personal health informa-
with Disabilities Act, the Reha- co-workers has been turned tion. When an employer tells an
bilitation Act, and related equal away due to having symptoms employee whose temperature
opportunity laws. The guid- again becomes an issue. Em- is elevated, who tests positive,
ance permits employers to ask ployers should follow new de- or who has other flu-like symp-
employees if they are experi- velopments closely and refer toms and is denied entry, he or
encing known virus symptoms to www.eeoc.gov/eeoc/news- she turns away to go home. The
employee may be sent home
from work mid-shift after say-
ing he or she has a fever or has
had a difficult coughing spell.
The fact that the employee has
a health problem becomes ob-
vious to everyone else waiting
in line or working close by.
Even if the employee can en-
ter, wait until the line clears
or begin working and then ex-
its, his or her absence may be
noticed. Whether the employ-
er inadvertently violates that
worker’s privacy rights is an
open question. When practical,
taking a temperature, screen-
ing, or testing should be in a
space that is private, and any
notice to co-workers should
not identify by name a col-
league who is absent for health
reasons. Medical information
obtained through these proce-
dures should be documented,
but stored separately from the
employee’s personal file.
The Off-the-Clock Issue
If employees are waiting in
line to have their temperatures
taken (or to be tested if kits be-
come available), they cannot
clock in until they are approved
to enter and reach the time
clock. Under current case law,
California requires that em-
ployees waiting in line to have
bags and backpacks checked
by security before exiting after
clocking out but after clocking
out must be paid for the time.
Frlekin v. Apple, Inc., 8 Cal.
5th 1038 (2020) There is no
guidance on the issue in the
context of waiting in line to
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enter work, but if the Frlekin
principle applies to employees
whose entries are delayed due
to testing, then that time must
be paid. Off-the-clock claims
are usually tested in expensive
class action litigation, where
even if the employer wins, it is
money out the door. Employ-
ers conducting tests or taking
temperatures should consider
whether paying an addition-
al 15 or 30 minutes of wages,
even if it triggers overtime, is
affordable and will avoid risk.
The Reporting Time Issues
The California Industrial Wel-
fare Commission orders require
that an employee who reports
to work but is not assigned to
at least one-half day’s work is
entitled to one-half of his usu-
al day’s pay but in no case less
than two nor more than four
hour’s pay, at the regular rate.
If, however, a state of emergen-
cy is declared, as in the case of
COVID-19, reporting time pay
does not apply if an employ-
er’s operation cannot begin or
continue when recommended
by civil authorities. Absent an
authorized state of emergency,
including when that state is lift-
ed by authorities, the reporting
time obligation applies. For that
reason, if an employee reports
to work, but is turned away be-
cause he or she tests positive
for the virus or his or her tem-
perature is elevated, whether he
or she is eligible for “reporting
time pay” is an untested ques-
tion. In these circumstanc-
es, paying an employee the
reporting time pay should min-
imize the risk of liability. Em-
ployers should refer to www.
dir.gov/dlse/2019-Novel-Coro-
navirus. html
The Telework Expense Issues
Some businesses have re-
mained functional by having
employees work remotely.
Labor Code Section 2802 re-
quires an employer to reim-
burse employees for expenses
necessarily incurred in doing
their jobs. Employees in Cal-
ifornia must be reimbursed a
reasonable percentage of their
costs for using personal de-
vices, including cell phones.
Cochran v. Schwan’s Home
Service, Inc., 228 Cal. App.
4th 1137 (2014). On getting
back to work, employees who
worked remotely may seek
to be reimbursed for expens-
es like internet access, paper,
Arthur F. Silbergeld is an
employment litigator in the
Los Angeles office of Thomp-
son Coburn LLP. He can be
reached at asilbergeld@
thompsoncoburn.com.
printer ink, and other supplies
as well as any work-related
mailing costs. The percentage
of expense that was reasonable
when employees were at work
may not be reasonable while
they worked at home. The ag-
gregated expense requests may
be substantial, and California
law provides no guidance as
to what is reasonable in these
circumstances. Exercising dis-
cretion, setting uniform reim-
bursement percentages, and
promptly payments will likely
be appreciated and avoid dis-
putes.
For many employers, these
have been difficult times, fi-
nancially and personally. Tak-
ing precautions in compliance
with federal and California
employment laws may help
to avoid further complications
when getting employees back
to work. 
Kacey Riccomini is an asso-
ciate in the same office and
can be reached at kriccomi-
ni@thompsoncoburn.com.