Employment Law Alert: DFEH Issues Updated Guidance Regarding COVID-19 Testing and Other Issues

On July 24, 2020, the California Department of Fair Employment and Housing (“DFEH”) issued updated guidance for certain matters related to employer handling of COVID-19.

Most important, the DFEH confirmed that employers may require employees to submit to viral testing for COVID-19 before permitting employees to enter the workplace. The DFEH instructed that employers should ensure the testing used is accurate and reliable, and part of a more comprehensive plan for reducing transmission of COVID-19 in the workplace. Although the DFEH has authorized testing, employers should consult with employment law counsel prior to implementing such a program to ensure that other related precautions are taken, such as maintaining test results as a confidential medical record. The DFEH did note that employers may not require employees to submit to antibody testing.

Where an employee tests positive for COVID-19, the DFEH’s updated guidance confirms that employers may send the employee home. A decision as to when to allow an employee who tested positive to return to work may be based on a symptom-based, time-based, or test-based strategy.

Although the California Family Rights Act generally permits employers to obtain certifications from health care providers supporting the need for an employee’s leave of absence, the updated guidance provides that in the context of a pandemic, it is not typically practicable for employees to obtain certifications when health care providers are working to address urgent patient needs. The DFEH instructed that employers must use their judgment and recommendations from public health officials to waive certification requirements when considering and granting leave requests. Thus, employers are cautioned about taking a hard line on employees who are legitimately struggling to obtain medical certifications in a timely manner.

Finally, the guidance affirms that if an employee has an underlying medical condition that qualifies as a disability and that increases the employee’s risk for severe illness from COVID-19, the employer must reasonably accommodate the employee, absent undue hardship to the employer. However, because age is not a disability, employers are not required to reasonably accommodate employees based on their age alone (although conversely, employers cannot take actions that are overly protective of older workers, such as returning only younger workers to the worksite, even if the employer is doing so to protect its older employees from COVID-19 risks).