As the Coronavirus/COVID-19 pandemic persists, California employees have several options for exercising their complex web of employee rights.  Given these unprecedent times, not every right is clear.  This article provides a brief overview of some of the rights California employees are entitled to during the Coronavirus/COVID-19 pandemic.

Can My Employer Force Me to Submit to a Coronavirus/COVID-19 Temperature Check Before Allowing Entry into the Workplace?

Yes.  Based on public health guidance, employers may measure employee body temperature for the limited purpose of evaluating the COVID-19-related risk that the employee’s presence poses a threat to others. However, employers must keep confidential any employee health information obtained by performing the temperature check.  Under normal conditions, measuring an employee’s body temperature is a medical examination performed under limited circumstances.  Employee temperatures are confidential medical data.  DFEH July 24, 2020 Guidance.

Can My Employer Ask Employees if They Are Experiencing Coronavirus/COVID-19 Symptoms?

Yes.  Employers may ask employees if they are experiencing COVID-19 symptoms, including fever, chills, coughing, or a sore throat.  However, employers must keep confidential any employee health information obtained in response to the inquiry.  DFEH July 24, 2020 Guidance.

Can My Employer Force Employees to Submit to Coronavirus/COVID-19 Viral Testing Before Entering the Workplace?

Yes.  Employers may require employees to submit to viral testing before allowing entry into the workplace.  Employers must ensure that the test is accurate and reliance, and that all testing is part of a comprehensive planfor reducing COVID-19 workplace transmissions.  DFEH July 24, 2020 Guidance.

California employees are entitled to compensation where their employers require that they obtain a Coronavirus/COVID-19 test while off-the-clock.

Can My Employer Force Employees to Submit to Coronavirus/COVID-19 Antibody Testing Before Entering the Workplace? 

No.  Antibody testing indirectly detects past or waning COVID-19 infections.  Such tests are less accurate and reliable than viral testing for detecting COVID-19 infection.  Therefore, antibody testing is not job-related and not necessary to reducing COVID-19 workplace transmissions.  DFEH July 24, 2020 Guidance.

What is the Difference Between A Viral Test & An Antibody Test?

An antibody test is a blood test designed to detect antibodies against the coronavirus that cause COVID-19.  A viral test uses a long swab to collect material from the back of the nose where it meets the throat.  Again, employers are permitted to require employees to submit to a viral (swab) test before entering the workplace, but not an antibody (blood) test.

Can My Employer Force Employees to Wear Personal Protective Equipment to Reduce COVID-19 Workplace Transmission?

Yes.  Employers may require employees to wear personal protective equipment (“PPE”) during the COVID-19 pandemic.  DFEH July 24, 2020 Guidance.

Can My Employer Send Employees Home If They Display COVID-19 Symptoms or Test Positive for COVID-19?

Yes.  However, the employer must not identify the employee by name to ensure compliance with privacy laws.  DFEH July 24, 2020 Guidance.

Can My Employer Require Employees to Use Contact Tracing Applications?

Probably not. Although technology companies, like Apple and Google, have launched Coronavirus/COVID-19 contact tracing applications, which help trace the spread of the virus, California employers are unlikely able to force employees to use these applications as a condition of employment or continued employment.  The contact tracing applications are not only likely violating California employee privacy, but also support a claim for impermissible regulation of the California employee’s off-duty conduct in violation of the California Labor Code.