In this episode of The Workplace podcast, CalChamber employment law experts Matthew Roberts and Ellen Savage discuss some of the latest labor and employment issues concerning California employers, including: remote work expense reimbursements; religious accommodation requests; lactation accommodations; and pet bereavement leave.
Remote Work Expense Reimbursements
In kicking off the podcast, Savage talks about a recent appellate court case, Thai v. International Business Machines Corp. In this case, a group of IBM employees sought to be reimbursed for expenses, such as computers, headsets and phone service, after the company requested employees work from home due to stay-at-home orders mandated by the government during the COVID-19 pandemic.
The California Court of Appeals sided with the workers, stating that businesses can’t pass business expenses on to their employees. The court held that the employees were working at home because their employer told them to, even though the government told IBM to do it, Savage says.
The decision is a slippery slope and leaves many questions unanswered. How far do these expenses go, Savage asks? What about expenses such as air conditioning bills, mortgage payments, toilet paper, or coffee? Or what about home expenses incurred by an employee who has an office space available but chooses to work from home?
Roberts replies that unfortunately, the courts are still mulling over many of these issues and employers may get a decision on these down the road.
The next issue Savage and Roberts discuss is religious accommodations.
In a recent U.S. Supreme Court case, Groff v. DeJoy, the court ruled on what level of undue hardship is necessary in order for an employer to refuse to provide reasonable accommodation under federal religious protection rules.
The high court ruled that the employer has to demonstrate that there are substantial increased costs in relation to the conduct of the particular business, Savage says.
This court case, however, does not have a huge impact in California. In California, and now in the rest of the country, employers should look at what religious accommodation is being requested and consider whether it will be unduly costly or burdensome.
Savage suggests that employers consider factors such as the company’s overall size, number of employees, budget and the types of facilities involved, and then compare it to the nature and cost of the accommodation requested.
Regarding the question of cost, an employer recently called the CalChamber Labor Law Helpline and asked whether the cost factor pertains to the worker’s department or the company as a whole. Savage explains that the cost pertains to the whole company’s bottom line.
Another employer called the Helpline concerning the authenticity of a stated religious belief. And here is where employers should tread very carefully, Savage warns.
“In the eyes of the law, religion is kind of a personal thing. So questioning someone’s religion is really, really risky. I tell people, if someone says their religion is to go out into the forest and pray to the squirrel gods, I’m going to say, ‘OK,’ unless I talk to my legal counsel first,” she says. “One of the questions that I got this week dealt with somebody who said that their religious belief prevented them from putting their children in child care, so they wanted an adjustment to their schedule. I don’t know of any religion that does that. But again, like the praying to the squirrels, we typically aren’t going to question it, and [instead] we’re going to talk about whether we can accommodate.”
Now that many workers are back in the office, lactation accommodation is something that is top of mind for employers.
All employers, no matter how small, need to have a policy in place and provide a time and place for lactation, Savage explains.
The break time provided can be in addition to an employee’s paid break time, and if the worker needs additional time, that time does not have to be paid.
Employers must also provide a private place that’s near the employee’s work area to pump, and the location cannot be a bathroom. The place has to be safe, clean, and free of toxic or hazardous materials. This means that the location cannot be a cleaning supply closet, Savage says. Moreover, the place has to have a surface to put the breast pump and other personal items, have seating, and must have access to power for the breast pump, whether it’s a plug or some type of adapter. Additionally, the employee should have access to a nearby sink with running water and a refrigerator, but these two items do not have to necessarily be in the lactation room. If an employer can’t provide a refrigerator (for example, the worksite is out in the artichoke fields), then the employer should supply a cooler for their employees.
Employers must also include their lactation accommodation policy either in the employee handbook or some other kind of policy manual. This lactation accommodation policy must be given to all employees, regardless of gender, upon hire and again if an employee asks about parental leave.
A recent Helpline caller inquired about wearable, hands-free breast pumps. Savage says that even though a wearable breast pump can be worn while working, employers must still make a private lactation space available, and all the above rules around lactation accommodation still apply.
Another caller asked what to do if an employee is using a wearable pump while working, Savage says. The employer was concerned that other employees would feel uncomfortable with the idea of their co-worker sitting at the next desk using a wearable breast pump. Could the employer ask the employee to use a lactation room instead of pumping at her desk?
Savage told the employer that while lactation laws don’t address this question, it’s not a good idea for an employer to require the employee to pump in the lactation room. Savage adds that airlines are allowing flight attendants to use wearable pumps while they’re working so that they can breastfeed their babies despite long hours and few private places to pump on most airplanes.
Pet Bereavement Leave
In closing the podcast, Roberts says that a recent Labor Law Helpline caller asked what their obligation was to provide pet bereavement leave.
Savage says that California’s new mandatory bereavement leave law is available for certain employees for the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or a parent-in-law.
“The new law definitely does not include a pet,” Savage stresses.
In Emeryville, however, the local sick leave ordinance allows the use of sick leave for certain pets, such as for the aid or care for a guide dog, a signal dog or a service dog that is for the employee or even one of the employee’s covered family members, she says.