3 Ways the Pandemic Left its Mark on law in the Workplace

BY DAN EATON MARCH 11, 2024 4:30 AM PT

On March 19, 2020, Gov. Gavin Newsom ordered all Californians except those working in “federal critical infrastructure sectors” to stay home due to the COVID-19 emergency. Nearly four years later, COVID-19 is still with us, but pandemic-related government mandates mostly are gone.

In my Aug. 3, 2020, column, I wrote: “I can’t wait to write a ‘What did we learn?’ column about how the law at work adapted to the resolved pandemic crisis.”

This is that column. Here are three durable ways the pandemic shaped the law at work.

Reimbursable work-related expenses

California Labor Code section 2802 requires employers to reimburse employees for all “reasonable costs” an employee incurs “in direct consequence of the discharge of his or her duties.”

Last July in Thai v. International Business Machines Corp., the California Court of Appeal held IBM was required to reimburse its employees for Internet access and computer-related expenses that enabled them to do their jobs from home during the lockdown. IBM argued unsuccessfully that an employer is only obligated to reimburse employees for work-related costs the employer, not the government, “directly caused.”

The employer’s reimbursement obligation, said the court, depends only “on whether the expenses were actually due to the performance of the employee’s duties. … It may be true that the governor’s March 2020 order was the ‘but-for’ cause of certain work-from-home expenses, but nothing in the statutory language can be read to exempt such expenses from the reimbursement obligation. Effectively, section 2802(a) allocates the risk of unexpected expenses to the employer …”

Consequently, employers must reimburse employees for unexpected work-related expenses incurred due to circumstances beyond the employer’s control, such as natural disasters. The employer retains the right to limit such costs to those that are both reasonable and reasonably necessary to enable the employee to perform their job functions.

Payout of value of unused vacation time

Perhaps no California industry was hit harder by the pandemic than the hospitality industry, which temporarily shed hundreds of thousands of jobs.

Hyatt Hotels indefinitely furloughed over 7,000 employees in March 2020, the start of the pandemic. Hyatt did not pay those employees the value of their unused vacation time then. Labor Code section 201 says the obligation to pay earned and unpaid compensation is triggered “at the time of discharge.” Hyatt argued it satisfied this obligation by making the payout in June of 2020 when it made the furloughs “permanent.”

The question in Hartstein v. Hyatt Corp.was whether an indefinite furlough triggers the right to payment of the value of unused vacation time or whether, as Hyatt contended, that right is triggered only by a complete, definite severance of the employment relationship.

In October, the U.S. Court of Appeals for the Ninth Circuit ruled that an employee who is indefinitely furloughed is entitled to immediate payment of the value of unused vacation time. A broad reading of the term ”discharge,” said the court, furthers the public policy behind section 201 — “to avoid depriving employees of the necessities of life and making them ‘a charge upon the public.’”

The news today is of furloughs unconnected to COVID-19 in California’s tech industry. The lasting lesson of the Hartstein ruling is that employees furloughed without a definite return date are immediately entitled to the value of their unused vacation time.

Job-protected bereavement leave

The California legislature enacted a law that, effective Jan. 1, 2023, requires California employers with five or more employees to offer employees employed at least 30 days at least five days of unpaid, job-protected leave to grieve the death of a close relative.

Assembly member Evan Low, who authored the measure, cited the death toll from the pandemic as a reason for this additional leave right. “The pandemic has killed nearly 85,000 people in California, and the need for this legislation is urgent. But it will also have a long-lasting impact. We cannot expect people to work at full productivity while they are mourning the death of a loved one.”

In my April 4, 2020, column, I wrote: “Coronavirus is not known to leave lasting marks on the body. But coronavirus is destined to leave lasting marks on the law. Coronavirus is destined to leave lasting marks on everything.”

So it has. So it will.

This article was originally published by The San Diego Union-Tribune.