EEOC UPDATES GUIDANCE TO EMPLOYERS: COVID-19 TESTS ALLOWED
By: P. Elizabeth Helms
The Equal Employment Opportunity Commission (“EEOC”) issued updated guidance on April 23, 2020 specifically concerning COVID-19 testing in the workplace. That guidance may be found here. Employers may now require COVID-19 tests before allowing employees back into the workplace.
Normally these actions would be considered overly broad and an invasion of an employee’s privacy rights under the Americans with Disabilities Act (“ADA”), but the EEOC has determined these tests are "job related and consistent with business necessity", one of the requirements under the ADA for an employer to require medical tests. However, the employer should make sure the tests are accurate and reliable, and be aware that some incidence of false-positives or false-negatives may be associated with a particular test. Also, as with all medical information, the test results would be subject to ADA confidentiality requirements.
COUNSEL TO MANAGEMENT:
Note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later. Employers should still require that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19. If you have questions about COVID-19 testing in the workplace, contact the experts at The Saqui Law Group, a division of Dowling Aaron Incorporated.
HOW DO I CALCULATE THE RATE FOR COVID-19 PAID SICK LEAVE?
By: Manuel Ignacio
With Governor Newsom’s Executive Order N-51-20 providing for supplemental Paid Sick Leave for food sector workers at companies with 500 or more employees (which applies to agricultural workers, see our report here), questions are arising over how to calculate the rate of pay for Paid Sick Leave.
State and federal law differ on this point but the safer approach is to use the California Regular Rate of Pay (“RROP”) calculations used to determine overtime premiums because they are more favorable to the employee. These are determined by looking at the previous pay period. If an employee just started working, it would be appropriate to use the hours and rate they would have worked in the workweek.
COUNSEL TO MANAGEMENT:
The Department of Industrial Relations has more information on calculating RROP here. You can also see our prior E-Blast articles on RROP here and here. For questions about navigating the paid sick leave rules related to COVID-19, contact the experts at The Saqui Law Group, a division of Dowling Aaron Incorporated.