Governor Calls for “Home Isolation” of Persons 65 and Older and With Chronic Conditions; School Employers May Grant Additional Leave, Including Paid Leave

03.15.2020

Today (March 15), Governor Newsom publicly called for “the home isolation of all seniors . . . 65 and older and those with chronic conditions.”

[See https://www.latimes.com/california/story/2020-03-15/california-seniors-isolated-bars-close-coronavirus-gavin-newsom ]

School districts, county offices of education, and community colleges (“school employers”) who employ persons who are (1) 65 years of age and older; or (2) who have chronic health conditions, are encouraged to consider either allowing such employees to work from home, or to allowing these employees to stay home (including, potentially, on paid leave), until this recommendation is lifted.  It is recognized that this may pose significant operational challenges, including in identifying employees who are subject to the Governor’s advisement, and in maintaining operations in the absence of such employees.

While employers have been conditioned to avoid discussion of age and medical status, the EEOC has issued guidance indicating such discussions are permissible in the context of a pandemic.  Insofar as the coronavirus (COVID-19) pandemic appears to target the elderly and those with chronic conditions, it is our view that discussions of age and chronic medical condition are permissible in the present context.  The Governor did not give a specific definition of “chronic condition,” however, a similar general concept appears elsewhere in the law, for example, in FMLA/CFRA regulations defining “serious health condition.”  We do not, however, advise requiring employees to self-disclose any medical diagnosis or health condition based on the Governor’s advisement alone.  School employers are encouraged to consult with their legal counsel regarding such discussions.  Links to the EEOC guidance are as follows:

https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm https://www.eeoc.gov/facts/pandemic_flu.html

School employers have authority to grant paid leave to certificated/academic employees who are unable to work “because of illness . . . or quarantine.”  (Education Code §§  44964 (K-12 certificated), 87765 (community college academic).)  Similarly, K-12 school employers have discretion to grant paid leave to classified employees for “a quarantine which results from his contact with other persons having a contagious disease while performing his duties.”  (Ed. Code § 45199 (k-12 classified).  School employers may also have board policy or collective bargaining language authorizing such leave.

The Education Code also provides a general grant of authority for school employers to grant additional leaves of absence, including paid leave, to certificated/academic and classified employees.  (Cal. Educ, Code §§ 44962 and 44963 (K-12 certificated), 45190 (K-12 classified), 87663 (community college academic), 88192 (community college classified).

While the California Constitution (Article 16, Section 6) prohibits the “making of any gift, of any public money or thing of value to any individual, municipal or other corporation whatsoever,” where funds are appropriated for a public purpose, they are not a gift.  Alameda County v. Jansen, 16 Cal.2d 276, 106 P.2d 11, 14 (1940).  Grants of paid leave — in the present circumstances — are for a clear public purpose, and, in our view, do not constitute a gift of public funds.

Leave entitlements are a negotiable subject under the Educational Employment Relations Act.  In the present circumstances, however, school employers may well be able to act now to adjust leave practices/policies on an emergency (immediate) basis without need to complete a collective bargaining process.  School employers are encouraged to consult with their legal counsel prior to taking such action.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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