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COVID-19-EDD GUIDANCE, WCAB & EEOC UPDATES

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EDD GUIDANCE ON ELIGIBILITY FOR BENEFITS
EMERGENCY WORKERS COMPENSATION INSURANCE ADJUSTMENTS
EEOC POSITION ON ANTI-BODY TESTING IN THE WORKPLACE

EMPLOYEES RISK LOSS OF EDD BENEFITS FOR REFUSING REINSTATEMENT

The Employment Development Department (“EDD”) has issued a set of FAQ’s regarding unemployment insurance (UI) benefits during the COVID-19 pandemic and specifically stated that individuals may be disqualified for unemployment insurance benefits if they refuse to accept “suitable” employment when offered, unless the refusal was for “good cause”.

“Suitable” offers of employment”: An individual is disqualified for UI if they refuse to accept “suitable” employment when offered. The EDD will consider whether the particular work is “suitable” in light of factors such as the degree of risk involved to the individual’s health and safety, and as a result whether the individual has good cause for refusing the work.

“Good Cause Refusal: The EDD will determine whether the reason for the employee’s refusal to return to work was for “good cause”, and if so, the employee may be able to collect unemployment. Reasons that are considered “good cause” include being over age 65 or immuno-compromised or having certain serious health conditions.

If the employer has complied with all appropriate regulatory guidance, there may be a finding that unless the laid-off or furloughed employee has underlying health issues that may increase their susceptibility to COVID-19, the refusal to return to work may not be considered “good cause” resulting in the denial of further unemployment benefits.

Telework: If an employee is offered to telework and the employee continues to refuse the “suitable” work, the EDD likely will determine that the employee is be disqualified from receiving UI benefits because there was alternative available work which would not compromise the employee’s health.

Refusal Due to Fear of Contracting COVID-19 at work:  If the employer has complied with the state’s requirements for reopening, and all government safety regulations, the employee may be determined not to have “good cause” to refuse to return to work and could be disqualified from continuing to receive regular UI benefits for a designated period of time.

Refusal for Reinstatement Because “I’m Making More Money on EDD”:  The EDD guidance indicates that benefits could end for workers who refuse “suitable” offers of employment simply because the wages being offered are less than their current unemployment benefits.


RECLASSIFICATION OF WORKERS/REDUCED WORKER’S COMPENSATION INSURANCE PREMIUMS

In response to the on-going financial struggles facing many businesses due to the COVID-19 pandemic, the California Insurance Commissioner Ricardo Lara recently issued an Order adopting emergency regulations which mandates that insurance companies recompute premium charges for policyholders to reflect reduced risk of loss and will result in savings for many policyholders. The new regulations are effective July 1, 2020.

Insurance Commissioner Lara has recognized that California’s business owners have been hit hard by COVID-19 and stated “Workers’ compensation premiums should reflect that many employees are performing less risky duties, and [the] Order will provide some financial relief for employers when they need it most.”

Under these emergency regulations, employers are permitted to reclassify an employee if the employee’s duties have changed to a clerical classification that has reduced risk than the employee’s previous classification. This reclassification will reduce the employer’s premiums for employees who are a lower risk because they are now working from home even though they may not have previously done so. This change would be retroactive to March 19, 2020, the first day of the Governor’s statewide stay-at-home order, and conclude 60 days after the order is lifted.

Excluded from premium calculations are payments made to an employee, including sick or family leave, while the employee is not performing duties of any kind for the employer, which will have the result of lowering the employer’s rate by reducing the amount of payroll assessed. Also, the employer will not pay premium for paid workers who are otherwise being furloughed.

This Order also excludes claims related to a COVID-19 diagnosis from being included in future rate calculations so that employers are not penalized with higher rates due to COVID-19 claims.

Insurers will be required to report injuries involving a diagnosis of COVID-19 which will allow the Commissioner’s statistical agent—the WCIRB—to keep track of COVID-19 injuries and will aid in the WCIRB’s future analyses of the workplace and market impacts.

Click here for the Commissioner’s Decision and Order.


EEOC PROHIBITS EMPLOYER MANDATED ANTIBODY TESTING

On June 17, 2020, the EEOC issued updated guidance on the issue of whether an employer can mandate employees obtain anti-body testing and the answer is NO. The EEOC’s position is stated at Q&A #A7 in the Technical Guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, which is updated regularly and can be found here.

A.7. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.

An antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.


As the guidance issued by the state and federal agencies is regularly changing, as is the medical information known about COVID-19, this memo is provided solely as a reference tool to be used for informational purposes and should not be construed or interpreted as providing legal advice related to any specific case or cases.


This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2020.