First the bad news….
COURT FINDS REIMBURSEMENT OF COVID RELATED WORK FROM HOME EXPENSES REQUIRED
As employers are well aware, California Labor Code §2802(a) requires employers to reimburse employees “for all necessary expenditures … incurred by the employee in direct consequence of the discharge of his or her duties.” The question as to the extent of this reimbursement obligation for employees working remotely due to COVID-19 stay at home orders has been unclear.
In a recent Court of Appeal decision, the First District Court of Appeal held that employers are responsible for reimbursing employees’ necessarily incurred remote work expenses, even when the only reason they are working from home is a government order.
In this case, Paul Thai worked for IBM and brought a PAGA action seeking reimbursement of expenses incurred to perform his regular job duties from home – he sought reimbursement for internet access, telephone service, a telephone headset, a computer, and related accessories – as these were the items that had been provided to employees by IBM when working at the IBM office.
IBM argued Labor Code Section 2820 only required reimbursement for expenses “directly” caused by the employer and that the Governor’s stay at home order was an “intervening cause” of the expenses incurred by the employees and for this reason Labor Code Section 2802 did not impose an obligation to reimburse.
The trial court agreed. However, the Appellate Court disagreed and found the plain language of Section 2802(a) requires the employer to reimburse an employee for all expenses that are a direct consequence of the discharge of [the employee’s] duties. The court noted that the reimbursement obligation turns on whether the expenses were actually due to performance of the employee’s duties.
The decision found that “[i]t may be true that the Governor’s March 2020 order was the ‘but-for’ cause of certain work-from-home expenses, but nothing in the statutory language can be read to exempt such expenses from the reimbursement obligation. Effectively, section 2802(a) allocates the risk of unexpected expenses to the employer, which is consistent with the Legislature’s intent in adopting the statute.”
Employers are reminded that there is an obligation to reimburse employees for all necessary expenses that the employee incurs as a consequence of performing their duties to avoid any potential liability. The amount of the reimbursement required has not been detailed by any court other than the reimbursement should be “reasonable.”
(Thai v. International Business Machines Corp., 2023 S.O.S. 2415.)
Next, The Good News….
NO DUTY OWED TO EMPLOYEE FAMILY MEMBERS FOR “TAKE-HOME” COVID-19 INFECTION
It is clear that employees have the right to file workers’ compensation claims for injuries suffered as a result of contracting the COVID-19 virus at work, and further it is understood that the workers’ compensation claim is the “exclusive remedy” for an employee’s COVID-19 claim.
And under the theory of the exclusive remedy doctrine, civil claims against an employer by an injured worker are barred in most situations. Further, dependents and other persons cannot bring civil claims that are derivative of an employee’s work-related injuries (derivative injury). But what about an employee who brings home the COVID-19 infection?
That issue has now been addressed by the California Supreme Court in the case of Kuciemba v. Victory Woodworks, Inc., where the court held that if an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, the derivative injury rule does not bar the spouse’s negligence claim against the employer, but an employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members.
In this matter, Robert Kuciemba began working for Victory Woodworks in May 2020, and later became infected with COVID-19. Robert was hospitalized and filed a workers’ compensation claim. He allegedly carried the virus home from work and transmitted it to his wife (Corby) who was hospitalized for several weeks.
Corby and Robert both sued Victory Woodworks – Corby for her own illness and Robert for loss of consortium. The federal district court dismissed the case finding that the wife’s action was barred by the exclusive remedy provisions of the California Workers’ Compensation Act and that the employer’s duty to provide a safe workplace did not extend to non-employees. The matter went to the Appellate Court which then certified two questions to the state Supreme Court:
(1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act … bar the spouse’s negligence claim against the employer? The Court answered No.
(2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members? The Court also answered No.
Although the Court found that it is foreseeable an employer’s negligence in permitting the spread of COVID-19 in the workplace will cause members of employees’ households to contract the disease, recognizing a duty of care to non-employees would impose an intolerable burden on employers which lead the Court to conclude that employers do not owe a tort-based duty to non-employees to prevent the spread of COVID-19.
The Court acknowledged the significant challenges to employers raised by COVID stating “there is only so much an employer can do. Employers cannot fully control the risk of infection because many precautions, such as mask wearing and social distancing, depend upon the compliance of individual employees. Employers have little to no control over the safety precautions taken by employees or their household members outside the workplace. Nor can they control whether a given employee will be aware of, or report, disease exposure.
The Court emphasized that a duty to prevent take-home COVID would extend to every California employer and that “the pool of potential plaintiffs would be enormous, numbering not thousands but millions of Californians.” Imposing such a duty on an employer “would throw open the courthouse doors to a deluge of lawsuits…”
With this decision, the California Supreme Court resolves one of the most potentially dangerous legal issues arising from the pandemic. (Kuciemba v. Victory Woodworks, Inc.)
Third, some I-9 news….
I-9 FORM UPDATED
The current I-9 form has been updated and will be obsolete and no longer valid for use as of October 31, 2023.
Starting Nov. 1, 2023, employers must begin using the updated version and employers who fail to use the updated edition of Form I-9 may be subject to all applicable penalties under the code.
You can find the edition date at the bottom of the page on the form and instructions.
The new form can be found here Form I-9, Employment Eligibility Verification
Employers can find more information on the USCIS Forms Updates page.
DHS RULE WILL PERMIT REMOTE I-9 AUTHORIZATIONS ON A PERMANENT BASIS
The United States Department of Homeland Security (“DHS”) has issued a final rule that will permit certain employers to remotely verify I-9 employment authorization documents on a permanent basis beginning August 1, 2023.
Historically, prior to COVID-19, employers or their representatives had to physically inspect the documents presented to verify eligibility to work in completing the I-9 form. The requirement for the physical inspection was suspended and extended several times during COVID-19.
Under the new rule, the DHS had created options for employers to review documents evidencing employment eligibility and identity without physical inspection and could implement a remote process to examine the employee’s documents providing their employment eligibility and identity. The new rule takes effect on August 1, 2023.
The rule is accompanied by a notice allowing employers enrolled in E-Verify to utilize the alternative procedures “Alternative Procedure: Optional Alternative 1 to the Physical Document Examination Associated with Employment Eligibility Verification,” introducing the first opportunity for employers to use the new remote verification option.
Effective August 1, 2023 under the new rule, to make use of remote authorization (which the rule refers to as the “alternative procedure”), employers must:
- Be enrolled, and participate in good standing in E-Verify;
- Use remote authorization for all employees at a site, or for all remote employees (but not for in-person or hybrid employees) so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic;
- Retain copies of all the documents presented by the employee to establish their identity during the alternative procedures; and
- Complete required E-Verify trainings on fraud awareness and anti-discrimination.
Further, the rule states that within three (3) business days of an employee’s first day of employment, an employer using the alternative procedure must:
- Examine copies of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
- Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the documents to the employer and then present the same documents during the live video interaction;
- Indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine the documentation to complete the form, or for re-verification, as applicable;
- Retain, consistent with applicable regulations, a clear and legible copy of the documentation; and
- In the event of a Form I-9 audit or investigation by a relevant federal government official, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.
The new rule will apply on a prospective basis to employees hired after the option takes effect on August 1.
Employers who used remote document examination procedures due to the COVID-19 pandemic and who are now subject to the requirement to conduct in-person physical examinations of such documents by August 30, 2023 may use the alternative procedure to satisfy this re-examination requirement, provided that they:
- Were enrolled in E-Verify at the time of the remote examination while using COVID flexibilities;
- Created an E-Verify case for the employee (except for re-verification, for which no E-Verify case needs to be opened), and;
- Performed the remote inspection between March 20, 2020 and July 31, 2023.
Employers making use of this accommodation under the final rule must also add “alternative procedure” with the date of the live video interaction (discussed above) to the employee’s I-9 form. As noted above, the accommodation does not apply to employers who were not enrolled in E-Verify – or did not create an E-Verify case for the employee(s) in question if required – at the time the remote verification was initially conducted.
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. ©2023.