California’s Department of Fair Employment and Housing (DFEH), the agency charged with administering California’s employment discrimination statute and regulations, has updated its COVID-19 guidance for employers. The updates cover many issues that employers had been struggling with during the pandemic, including:

  • COVID-19 Inquiries and Protective Equipment
  • Employees with COVID-19 Symptoms or Infection
  • Job-Protected Leave
  • Reasonable Accommodations for Employees with Disability/Vulnerable Populations
  • Vaccination

Some of the information that employers may want to take special note of include:

COVID-19 Inquiries

The DFEH states that employers may ask employees if they are experiencing COVID-19 symptoms, which is also required under many of California’s local health orders. Employers can also ask an employee why they did not report to work if they suspect the absence was for a medical reason.  However, employers must keep confidential any illness or medically related information disclosed by the employee.  The guidance provides that employers may also take an employee’s temperature or require an employee to submit to a COVID-19 viral test (but not an antibody test).  Employers should note that these allowances are based on the current state of the pandemic and may change as the circumstances continue to develop.

Employees with COVID-19 Symptoms or Infection

Employers are permitted under the current guidance to ask if employees have COVID-19 symptoms, so long as the information is kept confidential. Moreover, employers may send employees home if they have COVID-19 symptoms or test positive for COVID-19. Employers should review the guidance from California’s Labor Commissioner, the agency that enforces wage and hour matters, regarding sending employees home due to COVID-19 symptoms or similar.

Job-Protected Leave

The DEFH reminds employers that employees may qualify for leave under the California Family Rights Act (CFRA) either to care for a family member with COVID-19 or for their own illness if it results in inpatient care or requires continuing treatment or supervision by a health care provider. As with other requests for CFRA leave, employers may require medical certification. However, the DFEH states that “[i]n a pandemic, employers must use their judgment and recommendations from public health officials to waive certification requirements when considering and granting leave requests.”

Vulnerable Populations

The FAQs discuss when reasonable accommodations must be considered for members of vulnerable populations. The DFEH guidance distinguishes between reasons for which someone may be a member of a vulnerable population. If an employee is a member of a vulnerable population because of a disability, then absent an undue hardship, the employer must provide a reasonable accommodation.  However, if the employee is a member of a vulnerable population because of age alone, there is no obligation to accommodate the employee.  The DFEH noted that age is not a disability.

Vaccination

The FAQs provide that an employer may require employees to receive an FDA-approved COVID-19 vaccine if certain criteria are met, including:

  1. The employer may not discriminate against or harass employees or job applicants on the basis of protected characteristics.
  2. The employer must provide reasonable accommodations as required by applicable law.
  3. The employer may not retaliate against anyone for engaging in protected activity such as requesting a reasonable accommodation.

The FAQs also provide that employers who have a mandatory vaccine program may ask for “proof” of vaccination.  If employers make such requests, the FAQs provide that employers “may wish to instruct their employees or applicants to omit any medical information from such documentation.”  Employers are reminded that an individual’s vaccination status must be kept confidential.

Jackson Lewis continues to track federal, state, and local guidance pertaining to COVID-19 and the workplace. If you have questions about the DFEH guidance or related issues, contact a Jackson Lewis attorney to discuss.

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Photo of Cepideh Roufougar Cepideh Roufougar

Cepideh Roufougar is a Principal in the San Francisco, California, office of Jackson Lewis P.C.

Ms. Roufougar is Co-Leader of the California Advice and Counsel Resource Group. She advises and counsels management in all areas of labor and employment law, with a focus…

Cepideh Roufougar is a Principal in the San Francisco, California, office of Jackson Lewis P.C.

Ms. Roufougar is Co-Leader of the California Advice and Counsel Resource Group. She advises and counsels management in all areas of labor and employment law, with a focus on identifying practical solutions to help ensure compliance with state and federal law. Ms. Roufougar positions herself as a strategic partner when providing advice and counsel about litigation avoidance, employee management issues, implementing disciplinary actions, and collective bargaining issues. Her ability to see the big picture clearly and understand her client’s businesses in emotionally charged and highly complex disputes has helped her clients financially and prevented litigation. Her clients rely on her to guide them through both short-term and long-term planning to achieve their unique goals and strategies.

Ms. Roufougar is an experienced trainer and presents seminars on a wide range of subjects, including: leave management and reasonable accommodations; preventing discrimination, harassment and retaliation; implementing and sustaining disciplinary actions; conducting defensible workplace investigations; first-line supervisor trainings; performance management/evaluations; and wage and hour issues.

Ms. Roufougar has been successful in helping her clients prevail in numerous arbitrations and administrative appeals. She has extensive experience representing employers in labor and employment disputes. She has defended employers in employment litigation matters, including claims alleging violations of the Public Safety Officers Procedural Bill of Rights Act, FLSA collective actions, and claims of harassment and discrimination. Ms. Roufougar also conducts complex workplace investigations.

Before joining Jackson Lewis, Ms. Roufougar practiced at a well-regarded local labor and employment firm and served as in-house counsel for a local public agency.