You’ve found out an employee either tested positive for COVID or was in close contact with someone who did. Of course, you need to let the employee quarantine. Isn’t that a no-brainer? You would think so. Not only should you let the employee quarantine, but you should also require it. What’s the problem, then? Not every employer sees it that way. That’s a biiiiiiggggg problem! Does it really happen? Sure. You might be thinking that if it happens it’s probably only in the healthcare sector. Think again. Where is this happening? What are the consequences when an employer refuses to let an employee quarantine? Let’s have a look at that, shall we? Court Watch Los Angeles has fired off some blistering criticism of the Los Angeles Superior Court after an interpreter and a court clerk at the Clara Shortridge Foltz Criminal Justice Center died from COVID-19. Here’s what allegedly went down:
The L.A. Superior Court apparently does not screen members of the public before they enter the building. It did not and does not inform its staff of potential COVID exposure and it did not and does not allow (paid) leave employees to quarantine after potential exposure. The exposure that led to the interpreter’s death began in late November after a symptomatic COVID-positive member of the public appeared in one of the courtrooms. The interpreter was in that courtroom on that day and was not informed of the exposure. He later learned of it by word of mouth on December 7. The court’s Interpreter Services Division denied his request for paid leave to quarantine. He continued working until December 10 when he tested positive. Shortly thereafter, 18 court interpreters asked for 14 days’ paid leave to quarantine. The Interpreter Services Division granted only some of the requests, granted others partial time off, and denied some requests outright, despite doctors’ notes documenting the need to quarantine. The interpreters, through their union, had asked the Interpreter Services Division to properly inform employees of potential exposure and to provide paid leave to quarantine.
Court Watch Los Angeles contends that the interpreter’s death was “very likely caused by a confluence of Los Angeles Superior Court practices, from their failure to screen members of the public entering the courthouse, to their refusal to inform all staff who are actually exposed to COVID-19 of their exposure, to their refusal to allow staff who have been exposed to quarantine,” If the allegations are true, it will be hard for the LA Superior Court to argue the point.
Being an employment attorney, I do have to look at the legal angle and point out potential implications for any employers who follow in these footsteps. Here are a few points:
- If the allegations are true, the L.A. Superior Court was in violation of the Families First Coronavirus Response Act (FFCRA). The FFCRA applied to all public employers with more than 1 employee (in addition to all private employers with fewer than 500 employees) through December 31, 2020. (President-elect Biden is pushing to reinstate it and beef it up a bit, so its requirements may be back in the near future.) The FFCRA required up to 2 weeks’ paid sick leave for employees with COVID or needing to quarantine for COVID-related reasons. This is the Emergency Paid Sick Leave (EPSL) component. As a public employer, the LA Superior Court would not have received a tax credit. (Could that be why it was denying paid leave?)
- Some states have passed laws specifically requiring employers to provide paid quarantine leave to employees — and they aren’t necessarily limited to one such leave. New York is one such state. An employee might have to quarantine if s/he’s in close contact with someone who tested positive and could need to quarantine again if s/he also contracts COVID at a later time.
- An employer who acts the way the LA County Superior Court allegedly acted, may well be asking for a mega-lawsuit–and the workers’ comp bar might not save this employer. Yes, workers’ comp benefits are available to employees who suffer a work-related illness or injury. Yes, workers’ comp is usually the employee’s sole recourse in such a situation–but not when the illness or injury more likely than not results from an employer’s intentional act. If this employer new about the exposure and refused to inform its employees and refused to let employees take time off to quarantine, then, that might amount to an intentional act under California’s workers’ comp laws (I am neither a workers’ comp attorney nor am I licensed in California).
- The Occupational Safety and Health Administration (both federal and state) might come knocking. COVID under these circumstances is a reportable illness. The Occupational Safety and Health Act’s General Duty clause requires an employer to protect employees from recognized safety hazards. COVID qualifies.
- Any employer who acts as this one is alleged to have acted, helps to spread COVID–and is unlikely to earn any sympathy for the trouble in which it later finds itself.
So what should you do? Here are some starting points:
- If an employee tests positive, or has a doctor’s note, telling him/her to quarantine, let them quarantine–and do whatever you can to ensure they at least have partial paid leave. That can include unused PTO, Paid Sick, Paid Family, or Paid Quarantine Leave under any applicable state law.
- Let other employees know about potential exposure. Tell them they were identified as someone who had close contact with an employee (or member of the public) that tested positive for COVID. Require them to get tested and to quarantine unless/until they either have a negative COVID test or quarantined for up to 14 days.
- If you serve members of the public, screen for symptoms before admitting them onto your premises.
- If you’re not sure what to do, speak with your friendly local employment counsel — and err on the side of caution. You are not doing yourselves a favor by trying to cut corners and save a few dollars on paid leave.
Enough said — I hope.
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
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