In addition to considerations under federal law and California’s wage and hour laws, California employers should consider privacy, harassment and discrimination laws that are unique to California. California laws tend to be more protective of employees than federal counterparts and these differences may impact how an employer needs to respond to coronavirus concerns.
Unlike federal law and most states, California’s state constitution contains an express right to privacy that is generally understood to encompass actions by private individuals and entities which violate a privacy right. California courts, in turn, have held that this right to privacy extends to an individual’s medical information. Not only would an employee’s right to privacy be one reason employers should carefully consider and consult legal counsel before requiring a medical examination to test for COVID-19 (as further discussed below), but in the event an employer receives any information about an employee’s medical condition – like a positive diagnosis of COVID-19 – the employer must take care to keep such medical information confidential and separate from the employee’s personnel file, as required under federal and California law.
California’s right to privacy, however, does not prohibit employers from asking employees if they are planning travel or have traveled to areas with a high risk of exposure to the coronavirus. Further, employers do not violate an employee’s privacy interest if the employee voluntarily discloses medical information to the employer without any solicitation.
Medical examinations and permissible questions to employees under California law
Under California law, it is an unlawful employment practice for an employer to require the medical examination of an employee, to make any medical inquiry of an employee, to make any inquiry as to whether an employee has a medical condition, or to make any inquiry regarding the nature or severity of a medical condition. Gov. Code section 12940(f)(1). However, an employer may require examinations or inquiries that it can show to be job related and consistent with business necessity. Gov. Code section 12940(f)(2). Employer-mandated medical examinations necessarily implicate an employee’s protected right to medical privacy. Because of the rapidly evolving guidance regarding COVID-19, employers should consult legal counsel before requiring that any employee undergo a medical examination in relation to the coronavirus.
Furthermore, because of the privacy concerns outlined above, and the limitations on employer inquiries into an employee’s medical condition, employers should take care in asking employees specific questions about any symptoms they may be experiencing. If an employee is at work and is visibly exhibiting symptoms of COVID-19, like respiratory distress, employers may send the employee home. Employers may require a return to work certification from an employee’s doctor if the employee has been sent home or self-quarantined at home because doing so would not disclose information about the employee’s medical condition.
Because COVID-19 is believed to have originated in China, the media is rife with anecdotes of physical and verbal attacks on Chinese people and other people of Asian descent. As the virus continues to spread to other countries, such attacks may implicate other national origins. Employers should be mindful of how employees, especially supervisors, discuss COVID-19 in the workplace. A supervisor’s harassing and discriminatory actions are attributable to the employer. California law, unlike federal law, no longer recognizes the “stray remarks doctrine,” which states that isolated discriminatory remarks made by employees who have no role in personnel decision making or by supervisors who were not involved in the decision making process as it relates to the plaintiff cannot be used to prove discriminatory intent by the employer. Thus, offhand comments or even jokes about a person’s race or national origin in connection with COVID-19 now may have legal consequences down the road.