Employees’ Rights and the Coronavirus, Part 3

Posted by Joe Sayas | Mar 27, 2020

Q:        I read about severe cases of COVID-19 infections requiring several weeks of recovery. Can the employer fire me while being on leave due to this illness? Do I have remedies?

A:        The California Family Rights Act (CFRA) protects employees' rights to take a leave of absence due to the serious health condition of the employee or the employees' child, parent or spouse. This means employees may use this leave to self-quarantine as a result of potential exposure to COVID-19 if quarantine is mandated by medical or civil authorities, or to care for a spouse, child, or parent diagnosed with COVID-19.

California employers are subject to CFRA if they employ 50 or more part-time or full-time employees. Covered employers also include the State of California, its political and civil subdivisions, and cities and counties, regardless of the number of employees.

To be eligible for CFRA leave, an employee must be a full-time or part-time employee with more than 12 months of service with the employer, and have worked at least 1,250 hours in the 12-month period before the date the leave begins. Qualified employees may be entitled to a total of up to 12 workweeks in a 12 month period, which does not need to be taken continuously.

Employees must give advance notice to take a CFRA leave. While a verbal notice is sufficient, providing a written notice is advisable. The notice must state the reason for the leave and its anticipated duration. An employer may require 30 days advance notice if the need for the leave is foreseeable. If the leave is an emergency, notice must be given as soon as possible. The employer must immediately respond to a leave request and no later than ten calendar days after receiving the request.

After granting a CFRA leave, the employer must reinstate the employee to the same or comparable position and provide such a guarantee if requested by the employee. The employer may deny reinstatement of an employee if, for example, the position no longer exists. Finally, the employer must continue health care coverage during their CFRA leave up to a maximum of 12 work weeks in a 12-month period.

Violations of CFRA may result in significant damages for the fired employee.

California law prohibits discrimination based on disability or medical condition. If an employee is unable to perform his or her old duties, the employer must engage in a timely, good faith interactive process to determine if reasonable accommodation can be made for the employee. The employer must start the interactive process if the employee's disability becomes known or obvious.

The type of reasonable accommodation to be provided will depend on the employee's specific restrictions and the employer's circumstances. Reasonable accommodation may include offering part-time or modified work schedules to the employee to accommodate the employee's disability.

If the disabled employee was terminated, even though he or she could have performed the job with reasonable accommodation, the employer's conduct may be wrongful. The employee, who sues for wrongful termination and prevails, may be entitled to the following: reinstatement, back wages, loss of future earnings, damages for emotional distress, attorneys' fees and costs, including punitive damages in certain instances.

About the Author

Joe Sayas

C. JOE SAYAS, JR., Esq. Recognized as one of California's top employment and labor law attorneys by the Daily Journal, C. Joe Sayas, Jr. has devoted his more than 25-year litigation career to protecting workers' and consumer rights. He has fought for employees discriminated due to disability, ra...

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