California Employees Fear They’ll Catch Coronavirus in the Office. What Are Their Options?

March 19, 2020

The Sacramento Bee

In this recent article from The Sacramento Bee, Downey Brand partner and employment law attorney Elizabeth Stallard comments on the uncertainty surrounding employment issues resulting from from the current coronavirus crisis. Specifically, she offers her thoughts on whether or not an employee opens themselves up to the possibility of being fired for choosing to stay home during the crisis.

See full article below or view it online at The Sacramento Bee

By Dale Kasler for The Sacramento Bee

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Peggy Jahani doesn’t feel comfortable going to the office these days.

She and other nurses at Kaiser Permanente’s “appointment and advice” call center in Sacramento said they work too close together, huddled in small cubicles that they believe are breeding grounds for coronavirus. They’ve complained to management but have gotten little sympathy; Jahani said she was told to use vacation time if she wanted to stay home.

“We are fearful someone’s going to walk through this call center with exposure,” Jahani said.

Asked about the situation, Kaiser issued a statement saying employees at the call center “are distanced from each other, working in individual work stations with their own equipment that they can clean frequently.”

The COVID-19 pandemic has created fault lines between workers and their employers over a host of increasingly sensitive issues: Namely, can employees be forced to report to work if they’re afraid of contracting coronavirus? And can they be fired if they refuse?

The answer is complicated, labor-law experts say, and depends in large part on how risky the workplace is. A worker who has a compromised immune system, or some other underlying health problem, is on much firmer ground than someone who believes heading into work is dangerous but can’t provide any solid evidence to back that up.

The “stay at home” order issued Thursday by Sacramento County officials, following similar orders by Yolo County and six Bay area counties, might give workers additional legal protections. But the situation is hardly black and white.

The Sacramento order says people can go out for “essential activities,” such as grocery shopping, but legal experts said there’s still a fair amount of uncertainty as to what’s considered essential, and what an employer can demand from an employee.

If a business is deemed essential, that “gives the employer much more discretion in terms of what they can ask employees to do,” said James McGlamery, a lawyer in Sacramento who specializes in employment law.

But he added, “That’s a big gray area.”


In some cases, employees who don’t want to come to work can seek unemployment benefits, disability pay or a leave of absence, said Natalia Asbill, of the law firm Perkins Asbill.

A coronavirus website created by the California Employment Development Department said employees who don’t get paid sick leave from their employer could qualify for up to 12 weeks of “unpaid, job-protected leave” through the federal or state government. Those who have been exposed to coronavirus on the job could file a workers’ compensation claim.

Elizabeth Stallard, an employment specialist at the DowneyBrand law firm, said she’d be surprised to see any company fire a worker for not showing up. Firing someone would likely “open them up to liability … a retaliation claim,” Stallard said.

At the same time, the rapidly-changing climate around coronavirus is increasing the confusion about whether employees can insist on staying home.

“That’s an area (of the law) right now that is not fully developed,” Stallard said.

Case in point: On Tuesday, Sacramento County merely urged residents to stay home. It was an advisory. On Thursday that became an order.

Residents could be cited for a misdemeanor for any violations, although county leaders said their main intent is to have the power to close bars and ensure that restaurants are only serving take-out food.

Where that leaves anxious workers, fearful of exposing themselves to COVID-19, is uncertain. Much depends on whether someone works at an “essential service.” It also depends on whether that person, in turn, is considered essential to the running of that business, said Natalia Asbill, an employment law specialist at the Perkins Asbill firm in Sacramento.

“There really is a lot of wiggle room,” she said.

Attorney David Mastagni said a critical factor is the health of the employee who’s afraid to come into work. If the person has a pre-existing condition that could make her more vulnerable to coronavirus, the company would almost certainly have to allow that person to work from home or “give them some sort of accommodation, where they’re isolated” from others at the workplace, he said.

His own firm, Mastagni Holstedt in Sacramento, is wrestling with many of the same issues other private employers are facing.

“We have an ability to telecommute … but we need to be available to our clients,” said Mastagni, whose firm includes more than 100 workers and support staff.

Nobody has refused to come to work, he said. If they did, they’d have to use up vacation days, sick leave or personal days.

He didn’t provide a figure on how many employees are working from home, but said: “The overwhelming majority of our staff are thankful that the office is operational.”


A spot check of area businesses Thursday showed lots of Sacramento residents still coming to work.

In the office parks that dominate the area south of Highway 50 in Rancho Cordova, some parking lots were fairly full, while others were almost empty.

There were about 50 cars parked in the lot at Progressive Corp.’s customer service center, which employs roughly 400 workers. A security guard said the insurer was sending workers home even if they didn’t have computers to work on.

Jeff Sibel, a spokesman at Progressive’s headquarters in Cleveland, said, “Those that are uncomfortable coming to work have options, while still being paid. We want our people to be safe and we ask them to speak with their human resources representative so we can address their needs.”

Elsewhere, some workers have chosen to stay home, even if it means sacrificing a paycheck.

Shanall Eaddy, who works at the Faneuil Inc. call center at McClellan Park in North Highlands, said she left her job. Managers told her she wouldn’t be disciplined for staying home, but wouldn’t get paid either.

“I’m without money now,” said Eaddy, a single mom.

But she said she felt she had little choice; she believed her workplace had become hazardous.

“The lady next to me was coughing uncontrollably, she couldn’t breathe,” Eaddy said. “We’re literally two feet apart.” She said she plans to file for unemployment benefits.

Faneuil officials said the McClellan call center is safe. “There’s plenty of space; we have been working to separate people out,” said Alden Eldredge, an executive vice president at the Virginia-based company, which performs customer service for various clients.

Eldredge said employees have been told they’re free to go home but must use sick leave or vacation time. “Nobody‘s forcing them to be at work and nobody will hold it against them” if they leave.

He added that the company is trying to let employees telework.

“We are actively trying to migrate to ‘work at home,’” he said. In the meantime, “we’re trying to keep the site open so people can earn a paycheck,” he said.