172536_CPCA_2020_Spring Magazine - Final | Page 52

Returning to “Normal”: Legal Issues Law Enforcement
Agencies Face in Returning to Work Post-COVID-19
By: Geoffrey S. Sheldon, Partner and Chair of Public Safety Practice Group, Liebert Cassidy Whitmore and
J. Scott Tiedemann, Managing Partner, Liebert Cassidy Whitmore
The COVID-19 pandemic struck like lightning, moving law
enforcement departments to make rapid changes to employment
practices, from modifying work schedules to conducting
medical screening to disallowing vacations. Swift changing
circumstances left little room for deliberation or labor opposition. As
communities emerge from stay-at-home orders and return to a new
“normal” though, employees are questioning some changes. This
article identifies the key laws to know in assessing preparedness for
the legal challenges ahead.
Workplace Safety
Officials are lifting health orders, but COVID-19 remains a risk.
Employees may file complaints and Cal-OSHA may take enforcement
action if employers do not implemented adequate safety measures.
Chiefs should evaluate anew workplace safety measures in light of
updated health guidance and changing circumstances. California
Labor Code section 6400 requires employers to furnish safe and
healthful workplaces, and Cal-OSHA regulations require employers
to adopt Injury and Illness Prevention Programs, to conduct a hazard
assessment, and provide personal protective equipment to employees
to protect them from identified hazards. The California Department
of Public Health and Cal-OSHA recently published guidance that
employers establish written, worksite-specific COVID-19 prevention
plans and designate someone at each worksite to implement the plan.
Employee Privacy
Law enforcement executives have implemented safety measures,
like temperature checks, virus testing, and travel restrictions, which
implicate employee privacy. Under California’s Fair Employment and
Housing Act (“FEHA”) and the federal Americans with Disabilities
Act (“ADA”) employers may require medical tests and make medical
inquiries so long as they are narrowly tailored to the job and there is
a “business necessity” for the test/inquiry. Medical screens, like temperature
checks, have received tacit approval from authorities in the
pandemic; courts will uphold them if they are minimally invasive and
effective. Courts may more closely scrutinize individually ordered or
more invasive medical exams, like antibody or antigen testing.
52 CALIFORNIA POLICE CHIEF | www.californiapolicechiefs.org