As each day goes by, it becomes more and more apparent that the coronavirus is immune from tweets and plans on sticking around, at least for the near future.

While some of us track the number of coronavirus cases (have you visited the Johns Hopkins website lately? (www.jhu.edu)), others (well, at least one employment attorney) think about the legal implications of the coronavirus in the workplace. What if your employer asks you to board an airplane, but your fear of flying is compounded by your fear of the coronavirus? What if you have the sniffles and someone complains to HR? What if you or a co-worker test positive for the coronavirus (assuming, for a moment, enough test kits exist)?

The coronavirus crisis (let's not call it a pandemic just yet, at least not until it spreads to Antarctica) raises complex legal issues for the workplace. What are your rights as an employee and what are your employer's obligations? Perhaps most relevant, an employer has a statutory obligation to implement practices reasonably adequate to render the place of employment safe and healthful, and to do every other thing necessary to protect the life, safety, and health of employees. (Lab. Code, § 6401.) Does this mean that an employer must deep clean its workplace in the event an employee is exposed to the coronavirus? An employee who makes a good faith workplace safety complaint related to the coronavirus to an appropriate state agency or to his or her employer may have protection from retaliation and wrongful termination under the Labor Code. (Lab. Code, § 6310, subd. (b).)

In the unfortunate event where an employee or close family member becomes ill due to the coronavirus, the California Family Rights Act and the Family Medical Leave Act require covered employers to provide leave to eligible employees with a serious health condition or who have a family member with a serious health condition. It would seem that employers would be hard pressed to argue that the coronavirus does not qualify as a serious health condition and for a court to agree. It's hard to imagine an employer demanding that an employee come to work under such circumstances. Additionally, disability discrimination laws, which require employers to provide a reasonable accommodation such as a leave of absence, provide another source of potential protection for employees. While some (at least, one certain talk show host) may believe the coronavirus is nothing more than the common cold or the common flu, which are generally not considered disabilities (Cal. Code Regs., 2 tit., § 11095, subd. (d)(9)(B), it doesn't appear there is anything common about the coronavirus - not when it’s threatening to disrupt our daily lives. If the issue ever makes its way through the courts, it will be interesting to see if the courts consider the coronavirus a disability within the meaning of employment disability discrimination laws. Given that individuals with the coronavirus are subject to being quarantined and have a life threatening condition, albeit of a temporary nature, a compelling argument exists that the coronavirus should be considered a disability under employment disability discrimination laws.

I did some quick and not so complete research for employment cases involving SARS or Ebola for guidance on how courts may handle these issue and was able to find only one Ebola related case, Equal Employment Opportunity Commission v. STME (11th Cir. 2019) 938 F.3d 1305, which I guess is a good thing. In that case, Kimberly Lowe, a massage therapist for a Massage Envy franchise in Tampa, Florida, asked her employer for time off to visit her sister in Ghana in September 2014, in the midst of the Ebola crisis. Massage Envy was concerned that Lowe would become infected with Ebola and would return and "infect everyone." When Lowe refused to cancel her trip, Massage Envy terminated Lowe before she left for Ghana. Lowe did not contract Ebola during her time in Ghana, and there was never an outbreak in that country. Lowe claimed Massage Envy discriminated against her because Massage Envy perceived her as disabled or as having the potential to become disabled, in violation of the Americans with Disabilities Act ("ADA"). The Eleventh Circuit rejected Lowe's claim, concluding, "even construing the statute broadly, the terms of the ADA protect persons who experience discrimination because of a current, past, or perceived disability - not because of a potential disability that a person may experience later." Since this is a federal case, California courts are not bound to follow it when applying California law. Nevertheless, the facts in this case indicate that fear is likely to play a role as the coronavirus goes to work. . . . Talk about a bad co-worker.

Assuming civilization survives, we may seem some workplace related coronavirus cases work their way through the courts. It’ll be interesting to see if Congress or the California Legislature enact legislation addressing the coronavirus in the workplace. In the meantime, I’m off to Costco like the rest of us.

Employers love their arbitration agreements, except (apparently) when faced with having to pay for several thousand arbitrations at once. More and more, employers require their employees to sign agreements compelling them to submit any employee dispute to private binding arbitration. Instead of being able to submit claims of sexual harassment, disability discrimination, employment discrimination, interference with family medical leave (FMLA), pregnancy discrimination, wrongful termination, and the like to juries in publicly held trials, employees are forced to have such claims determined by a private arbitrator in a private conference room. Additionally, in order to avoid facing class action suits, employers include language in arbitration agreements preventing employees from pursuing class action claims in arbitration, in effect, insulating employers from class action cases, which often involve wage and hour claims for unpaid overtime, and meal/rest period violations.

Well . . . , over 5000 courier drivers for DoorDash (affectionately called Dashers) recently called DoorDash’s arbitration bluff. Alleging that they have been misclassified as independent contract workers, 5,879 Dashers demanded arbitration pursuant to arbitration agreements they were required to electronically sign. Under the arbitration rules, each Dasher was required to pay a filing fee of $300, with DoorDash having to pay a filing fee of $1,900 for each case and thereafter the fees for the arbitration proceedings. Faced with paying approximately $12 million in initial arbitration fees, DoorDash balked, claiming it was under no obligation to do so due to alleged deficiencies in the Dashers’ arbitration filings. Too bad said the district court, aptly writing,

“For decades, the employer-side bar and their employer clients have forced arbitration clauses upon workers, thus taking away their right to go to court, and forced class-action waivers upon them too, thus taking away their ability to join collectively to vindicate common rights. The employer-side bar has succeeded in the United States Supreme Court to sustain such provisions. The irony, in this case, is that the workers wish to enforce the very provisions forced on them by seeking, even if by thousands, individual arbitrations, the remnant of procedural rights left to them. The employer here, DoorDash, faced with having to actually honor its side of the bargan, now blanches at the costs of the filing fees it agreed to pay in the arbitration clause. No doubt, DoorDash never expected that so many would actually seek arbitration. Instead, in irony upon irony, DoorDash now wishes to resort to a class-wide lawsuit, the very device it denied to the workers, to avoid its duty to arbitrate. This hypocrisy will not be blessed, at least by this order.”

The case is entitled Abernathy v. Doordash, Inc., U.S. District Court for the Northern District of California case number C 19-07545. Here’s a link to the order. Is DoorDash likely to dash to the Ninth Circuit for review of the district court’s order? Stay tuned.