COVID's Impact on the Workplace, with Terry Leoni
How has COVID impacted the workplace? In this episode, I speak with Terry Leoni of Leoni Law Firm about COVID's impact on employers and employees. Terry is a labor and employment attorney who is on the forefront of tracking COVID's impact on the workplace with the evolving rules and regulations applicable to the workplace. In this episode, Terry and I discuss the following topics:
What should an employer do if an employee tests positive? (02:12)
Steps an employer should take to ensure the health and safety of the workplace. (03:52)
Does a positive employee require shutdown of the business? (05:44)
Can an employer require employees to return? (06:58)
Does an employer have to reimburse the employee for telecommuting costs? (13:56)
If you have questions regarding COVID and its impact on your business or are an employee with questions, contact Terry Leoni at 925-699-1800 or at her website, leonilawfirm.com. Thank you to Terry for joining me on this timely topic.
This podcast is brought to you by McKenna Brink Signorotti LLP.
Transcript
Ryan Lockhart (00:01):
Hello, and welcome to I Know a Lawyer. I am Ryan Lockhart, your host for today's episode. I Know a Lawyer is brought to you by McKenna Brink Signorotti, LLP. We are a boutique law firm in Walnut Creek, California. Check us out at mckennabrink.com to see the legal services and solutions that we can provide for you. On today's episode, I am joined by Terry Leoni of Leoni Law to discuss Covid's impact on the workplace. Thank you for joining me today, Terry, how are you doing?
Terry Leoni (00:30):
I'm great. Thank you for having me. I really appreciate it. And then I think this will be a lot of fun.
Ryan Lockhart (00:35):
No, thank you for agreeing to come on the show. This is a very timely topic, but let's start. Why don't you tell the audience a little bit about you and your practice?
Terry Leoni (00:42):
Sure. So I also run a boutique firm. I say that I am full service, labor and employment. So I represent employees. That's how I started my firm, both public and private, kind of a niche practice. And I really moved into representing businesses and entrepreneurs. The past few years, I felt like it's so hard, especially for small businesses or mid sized businesses and entrepreneurs to find assistance that is good and not completely overpriced. So I started doing that and then I do what I call associated or affiliated areas, professional licensing, and some criminal defense, you know, where it comes up, that's related to employment matters.
Ryan Lockhart (01:31):
No. Great. so how would a client or potential person reach you?
Terry Leoni (01:35):
Sure. They can go to my website, www.leonilawfirm.com. There is my phone number there (925) 699-1800. They can also complete a confidential intake on my website and that's the easiest and best way probably to contact me. And then from there I set up a consultation and also on LinkedIn, I do have a lot of updated information as well, especially about COVID because things seem to change, I would say, on a weekly, hourly, daily basis. It's just been nuts lately.
Ryan Lockhart (02:12):
Yeah. That's a great segue into the topic, obviously COVID is just like you said, changing hourly. So representing, especially small businesses, who've been really hammered by COVID one, just trying to make sure that our businesses can continue, but also trying to understand what the County is doing, what the state is doing as far as the different rules and regulations that are coming down with COVID. So let's start there. If, if you have a small business employer and an employee comes to them or at least contacts them and says, Hey, I tested positive, what's an employer to do.
Terry Leoni (02:47):
Sure. And you know, I've had this happen quite a bit with my essential businesses. And now non-essential businesses that have reopened and I've written policies you know, and information to the small business association about this first thing, I guess, from an employee standpoint, which is a little bit easier to do employee should first quarantine, then contact their employer, let them know that they tested positively immediately because that triggers a lot of information for the employer and they are entitled to benefits or potentially entitled to benefits from what we call FFCVRA the family first Corona virus relief act. But once an employer gets notified by an employee, they really need to make sure that that employee is quarantined or sent home. For instance, if they're still at work, you know, isolated, actually a new thing that has come up and what's really being required by OSHA is contact tracing or even limited contact tracing.
Terry Leoni (03:52):
And I'm sure everyone knows what that means, but just in case, you know, kind of a refresher trying to figure out where it came from, or if it came from the work site, if it came from the work site that will trigger, you know, additional steps, cleaning, disinfecting, things of that nature. But the contact tracing for an employer should be fairly minimal. It's a reasonable investigation, you know, kind of talking to the employee where they thought they got it. Potentially the employer, if there's a positive test and they're in a certain type of business, may have to report that positive test to OSHA. That's also a new issue that has come up recently, of course, cleaning and disinfecting, honestly, before COVID, I didn't even realize for employers and businesses, there is a difference between cleaning and disinfecting, but there are differences, you know, OSHA talks about it on their website.
Terry Leoni (04:49):
So I know we have a limited amount of time, but really making sure that the health and safety of your employees is a priority. So cleaning the work site and then notifying people of the potential exposure. And I say, people not only employees in close proximity, but if there's third parties, you know, let's say if you rent a space from someone else notifying a landlord, or, you know, you have a regular ups person, those types of things. So there's kind of a list that I, that I've gone through and written policies for people about that as well. So they have that internally.
Ryan Lockhart (05:28):
So you made a distinction early on about essential versus nonessential businesses. So if it's a nonessential business and an employee test positive, it's, it sounds like it's not an automatic shutdown of that non essential business, is that correct?
Terry Leoni (05:44):
Well, either one, I mean, in terms of an essential and non-essential business, they have to determine if they should shut down. There should be some process for making sure the employees and those third parties, their health and safety is looked after. So if they have to shut down to do the cleaning and disinfecting in some way or niche to determine, you know, how invasive, you know, where the person worked, they may have to shut down whether they're essential or not essential because a business has an affirmative duty to make sure that their employees, health and safety is taken care of.
Ryan Lockhart (06:23):
Oh, good point. Thank you very much.
Terry Leoni (06:25):
Lawyer answer. It depends.
Ryan Lockhart (06:28):
It depends. That's a, we love that answer as lawyers. Of course every situation is different, correct. For sure. Yeah. Yeah. Good. So let's say I have a business and it's not, you know, I have an office and I got, you know, 10 employees or so, and I sent them home when COVID started and now maybe not today, but soon we're reopening. And I said, okay, everybody come back to work. And they tell me they don't want to come back to work. They want to stay home. Can I force them to come back?
Terry Leoni (06:58):
Sure. That's such a great question. And it's been popping up a lot, especially, you know, in the news, I get it from employers and the employees side, you know, and it's whether I think a lot of in the news as well, they get more on unemployment benefits or more often people just don't feel safe, maybe for teachers, right. They don't feel that it's a safe place to return to work. So I think people are thinking, you know, just because there's a pandemic and COVID, they don't have to go back to work, but not so fast. And I recently wrote an article about this. If an employer has taken appropriate health and safety guidelines, again, they have that affirmative duty. So if they've looked at OSHA or the CDC, local health you know, local health sites or the County, and really taken those steps, you know, to make sure that they are reacting to COVID adding a sanitization station or you know, temperature checks verifying before anyone comes into the office that they don't have COVID or they haven't been quarantined, you know, updating their SIP policy, things of that nature.
Terry Leoni (08:07):
Then they have made it safe. And if they say, Hey, your job is available. You have to come back to work. You generally do have to come back to work or you can be terminated, or you're at what we call sort of a constructive termination. You know, you you've quit, but there is one caveat, of course, right? Especially with labor law and employment law, it's often not very black and white labor code, 6311 allows someone not to come to work. If they truly feel that there is a, the employer is presenting a hazardous workplace. For instance, I think there was a lot in the news about McDonald's potentially in Chicago and the Midwest. I think that's where I recall it, where it was really unsafe and they weren't taking any safety precautions. So that's the one issue that has come up. But generally, if the workplace is safe and the employer is following, you know, local state and federal guidelines, they do have to come back to work or they've they've quit.
Ryan Lockhart (09:11):
Hmm. So I guess my next, my next question on that front is who, who gets to determine if it's a safe workplace or not. So I guess if it's a reasonable for the employee to think that their workplace is not really safe, that they, the employer hasn't taken the steps that they think they should. What happens when you have a dispute? You have an employer saying, no, we've done everything, but the employee says, no, you haven't.
Terry Leoni (09:34):
Yeah. I mean, I don't think it's, it's not the old, what is pornography? I know when I see it, right, there are some guidelines that we can look at and, you know, employees can report unsafe conditions to OSHA. Honestly, I don't know how available they are right now because of the pandemic to respond or they can report to, you know, local the local health department. If there are issues, what I recommend for employees to do before they say, well, I'm just not coming in. Or I'm going to quit is to contact the employer in writing, whether it's a letter or email and say, Hey, what steps have you taken? I don't believe that your work site is safe for me to come in. Please let me know again, what steps you've taken or if possible, let's say if it's, you know, a business where someone can work from home, ask to work from home, and if they still determine that, you know, it's unsafe, then they can call a local health department or go, I think, to the state COVID site, that's helpful. Or call OSHA.
Ryan Lockhart (10:46):
Yeah. So I think with COVID for sure. There's definitely some myths that are out there. One of 'em, I don't know if it's a myth or not about, I'm going to ask you, but if an employee can work from home, is there a duty on the employer to allow them to work from home?
Terry Leoni (11:02):
No, there is not, not as far as I know. I mean, I don't know. I don't know it all, but they, they do not have a duty to allow them to work from home. And obviously a lot of work sites, you know, you just plain can't do that.
Ryan Lockhart (11:15):
Yeah. I can't do that. I mean, we represent a lot of construction companies and obviously they get construction back going, they're not gonna do that from home, so,
Terry Leoni (11:23):
Right. Yeah. And I represented a lot of essential businesses as well, and they just can't do it. So they don't have that affirmative duty. However, if people are requiring employees to come in and it's a very busy work site or they're not taking it and the employees can work from home, you know, that can go into factoring, whether it's a safe environment or whether the employer has really taken a look at the safest possible steps, because an not only wants to, you know, take into account the safety of their employees, but they also need to look at liability. I mean, every day in the news, we're seeing new lawsuits that pop up against employers, you know, like the McDonald's lawsuits that I referenced.
Ryan Lockhart (12:09):
Yeah, definitely. It seems like there's going to be a wave of lawsuits probably that are, you know, obviously courts are backed up there. Some are just reopening. This is going to take some time to wash out. I imagine. So it good news for you. You'll be busy with that.
Terry Leoni (12:21):
Right. And you know, it's already coming. For instance, I've seen a wrongful death cases. I think that people are looking at against the state of California for inmates and people who've died, you know, being exposed to COVID and those types of situations. So really the ultimately employers and businesses should look at the health and safety of their employees. Well, as well as, you know, customers too, but have to have that, that mind to think about liability purposes.
Ryan Lockhart (12:52):
Absolutely. So I know COVID is just, you know, changing hourly, like we mentioned before, and there was a, in a different context with some, I deal with some businesses worried about defaulting on their leases and there's definitely like a public policy emerging that they wanted landlords and tenants to try to at least have a discussion and work it out. It sounds like in this employer, employee context, same kind of public policy seems to be emerging, engage in dialogue. See if you can figure it out first, try to avoid quit or litigation down the road.
Terry Leoni (13:22):
Absolutely. Absolutely.
Ryan Lockhart (13:24):
So we talked about before we got on the recording of this episode about a topic that I didn't even think about, I thought was really interesting and it's about employees asking for possible reimbursement for costs associated with working from home. So telecommuting, you know, if the employee has to have a laptop to be able to work from home does the employer have to cover that? Does the employer have to cover maybe some different utility expenses or rent? So let's talk about this a little bit. Cause I think this is really interesting that a lot of employers probably haven't even thought about it at this point.
Terry Leoni (13:56):
Sure. And I love that, you know, our lawyer, our legal nerd side thinks, you know how interesting this is, right? But yeah, a lot of employers, even if people aren't working from home, if employers require their employees to use personal property, most often it would be a phone or a laptop. They are required to reimburse them for a percentage of that under labor code, 2802, it's really looking at business related expenses. You know, and most often it comes up again, you know, phone or laptop, but working from home, it's really opened up, you know, a larger dialogue and, you know, legal nerd self that I am is talking to other attorneys about this. And a few issues came up, well, how far are we going to stretch this? You know, the printer, printer, ink, your wifi, you and I were talking about our kitchen.
Terry Leoni (14:52):
And the idea came up about PG and E or your rent or your mortgage. You know, how far are these things going to go? I think that's stretching it a bit. I think employees would, are really stretching it to say, you now owe me, or you have to pay a percentage of my rent or my mortgage or the PG&E. And then you could have, then you would have to go back at least for PG&E. And look for the past few years at the same timeline has, has the usage really increased, but do we really want to get into that? So what I have advised employers is come up with a reasonable stipend, especially if people are working from home about, you know, what is acceptable to them, $50 a month, a hundred dollars a month, you know, and say, this will encompass all of the personal property that you're using. And then I, I recommend adding a caveat in there if there is, you know, expenses, or if there are expenses that you think are not encompassed within this stipend, let us know, and we can talk about it.
Ryan Lockhart (15:59):
Yeah. This is for my tax nerd side comes out because I'm, I look into like obviously deductions, right? Home office deductions, those kinds of things in the past. So this one is interesting to me because, you know, I'll just, my personal story is I've been working from home and there's been other costs that I've saved, like commuting costs. I filled up my gas tank maybe one time in four months instead of, you know, a couple of times a month, you know? So there's other things that I'm saving on, but yeah, I'm using a little bit more electricity at home because I'm working from home. You know, it's just interesting to see if an employer and employee really want to get into this type of battle, it just seems like you could really dive deep into like, well, how much is it really costing the employer or versus the employee. So I agree with you a stipend or just something that it's least reasonable and thought through and engage with the employee. It seems like the best course of action.
Terry Leoni (16:49):
Yeah. And if you're getting into that, that amount of, you know, problems with your employee or your employer, that's a bad relationship to have. And especially right now when things are difficult, what I, I tell employers to be a little bit more flexible. You want to, if, especially if you like your employees, you know, understand that times are tough. And even though people are working from home, it's not always easy. I mean, we talked earlier before we got on about the kids situation or being interrupted or having to work from your kitchen table, it's not always the best place or feeling like you're tied to your desk for, Oh, I forgot to turn off all my sound, but tied to your desk. So be a little bit more flexible.
Ryan Lockhart (17:34):
Good advice. I think any employer who's obviously dealing with COVID there's no, just the survivability of the business is obviously first and foremost in their mind, it seems like, but when it talks about their employees, these are just the deeper we get into this COVID. I've been calling this COVID summer. I mean, not trying to be obtuse about it, but try to have some sort of a, you know, I guess it brings some levity about it. Yeah. Some levity, but when you're, you know, this doesn't seem like it's going to any like any day soon and we hope that it's gonna like, and sometime soon, but the more we go on with this employer to just employees as well, or just having to deal with these different issues and just, this is the new normal, right. I put that in air quotes, the new normal is the new normal going to be telecommuting.
Ryan Lockhart (18:16):
And then when we really break down some of these expenses that we just talked about, right. Or does have really good policies in place for when a positive test does pop up in the business, whether it's the employee or maybe it was one of those third party vendors who, you know, delivered a package to your building and then that person tested positive and they notified the business as well. So I think going back to your policies that you've been writing for businesses, that's probably a key, key thing for employers to at least have in place at this time in case this thing goes for a long time.
Terry Leoni (18:47):
Yeah. That's exactly what I was going to say. My best advice is to, to think ahead, to be proactive and not reactive and to get written policies. I was gonna say written policies and writing, but isn't that a bit redundant policies and writing that you can provide to your employees, but also have internal policies, you know, for management, what to do is if there is a positive test. So, you know, and you're not scrambling at the last minute, you are ensuring the health and safety of your employees, you know, customers, any third parties that come in, that's my best recommendation.
Ryan Lockhart (19:24):
And it's also a good time to get their handbook updated. Right?
Terry Leoni (19:27):
Oh, absolutely. I've been doing a lot of,
Ryan Lockhart (19:30):
You're going to do policies might as well do it look at all.
Terry Leoni (19:33):
Exactly. It's a bit tedious, but it's necessary. And you know, employment law changes every year from, you know, lactation accommodations to sexual harassment. So it's always good to stay updated.
Ryan Lockhart (19:45):
Yeah. That was the one where I remember dealing with colleagues about the sexual harassment training. That, those requirements that came down, I think last year, right?
Terry Leoni (19:53):
Yes. Yeah, yeah,
Ryan Lockhart (19:55):
Yeah. That's a big one. You know, now COVID is like layered up on top of that. So it's just, it's a challenging time for employers across the board, obviously. So the more you can be proactive versus reactive, I think that's the great takeaway from today is employers should be proactive instead of reactive that way they are readily available to handle any type of situation that can come up. They have something they can fall back on. Absolutely. Well, thank you very much, Terry, for joining me today, I think this is a very timely conversation. Everybody's going to be dealing with COVID and as you said, it's changing. So I mean, these rules could change in the next week or months who knows what's going to happen for tomorrow. Yeah. And going back to the kids. So, you know, we, all those of us with kids have been, you know, trying to figure out what our school districts are going to be doing. So even then they're like, okay, we're going to start from home, but be ready in case we can get back into school, we're going to pivot as soon as we can. So employers gotta be ready to pivot as well.
Terry Leoni (20:49):
Oh yes. That's what I've been saying and what we've been living by, but I don't envy people with school, aged kids or teachers such a tough situation. Yeah.
Ryan Lockhart (20:57):
The teacher one is definitely hard, especially if you're a teacher with young kids at home. I mean, that's even doubly hard.
Terry Leoni (21:03):
No, I know its a tough situation, but I hopefully people find this informative and I do appreciate you inviting me on the new podcast. It's great.
Ryan Lockhart (21:14):
Hi, thank you for joining me and why don't you tell us one more time where they can reach you.
Terry Leoni (21:19)
Sure you can give me a call at (925) 699-1800 or probably an easier way is to go to my website, Leoni, L E O N I law firm.com. And we have a quick intake, confidential intake that you can fill out and let us know what you need. And we can set up a brief consultation.
Ryan Lockhart (21:43):
Great. So if you're an employer or an employee out there that has some employment law related issues, give Terry a call or a contact her at her website. She's, she's great at what she does. That's why I have her on my podcast. Highly recommended. Thank you Terry, for joining me today. Hank you. My name is Ryan Lockhart. This is, I Know a Lawyer and take care everybody. Bye bye.