The California Department of Fair Employment and Housing (“DFEH”) has released an FAQ, which provides timely guidance on civil rights issues for California employers and employees, in the midst of the unprecedented COVID-19 pandemic.
In general, the DFEH FAQ is consistent with previously issued guidance from the agency’s federal counterpart, the Equal Employment and Opportunity Commission (“EEOC”). The EEOC had issued guidance in 2009 relating to the H1N1 pandemic, which it recently updated to address similar issues with COVID-19 in the workplace.
The DFEH guidance confirms that during a pandemic, California civil rights laws continue to prohibit discrimination and harassment. Interestingly, the first topic the FAQ addresses is a reminder that the Fair Housing Employment Act (“FEHA”) prohibits such actions based on race and national original, presumably to address potential bias relating to the origin of COVID-19 in China.
The majority of topics, however, address privacy, disability, and leave issues that many employers are grappling with now. For example, the FAQ instructs on medical inquiries employers may make relating to COVID-19, as well as practices such as mandatory use of required personal protective equipment and taking employees’ temperatures. It also outlines the information employers may disclose to their workforce when an employee tests positive for the virus. Finally, the FAQ explains how employers must continue to reasonably accommodate employees with disabilities, which may include COVID-19 in some circumstances, and specifically identifies telework and paid or unpaid leave as specific accommodations.
California employers should carefully review the guidance, which is available here: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf.
SHLC attorneys are available to answer any questions you may have about the new DFEH FAQ. You can also find information on a wide range of COVID-19 employment issues at the SHLC Coronavirus Pandemic Employer Resources page, at https://www.suttonhague.com/coronavirus/. We also have downloadable webinars on this and related topics at our Calnevalaw.com website.