The coronavirus crisis has significantly impacted the lives of workers and their families. Pressing questions have been raised. We inform our clients and friends of employment laws generally applicable, in the hope of starting to find workplace solutions in these difficult times.
Q: California is on lockdown and my employer has sent non-essential personnel home, including me, on work furlough. What are my rights in this instance?
If you are an employee who has been sent home on a work furlough (provided you are not sick, quarantined or caring for someone who is sick or quarantined), you have the right to avail of unemployment benefits. You can contact the Employment Development Department (EDD) at www.edd.ca.gov to inquire about eligibility requirements.
Q: I am concerned about the possibility of coronavirus infection in the office. Since I can do my work at home, is my employer required to allow me to telecommute?
The law does not require employers to allow their employees to work at home in this situation. That means employees do not have the right to telecommute. However, it may not hurt to ask the employer if this is possible given the requirements of the job and the need to protect workers' health. Some companies have reportedly made temporary work at-home arrangements.
In the case of an individual who has a severely compromised immune system and has received advice from a physician to stay at home, there may arise issues involving California's disability laws. Employers maybe required to engage in interactive process to determine if the employee in this case should be given reasonable accommodation.
Q: If I go on leave, should I be paid while on leave?
For employees who have tested positive for COVID-19 or have been exposed to it and are now quarantined, they may be able to file a short-term Disability Insurance claim with the EDD,
If employees are unable to work because they have to care for a family member who is sick, such employees may be eligible to receive paid family leave from the state.
Q: If I get diagnosed with COVID-19, how long can I be out of work on protected leave?
In California, an employee working for 30 or more calendar days within a year is entitled to paid sick leave. An employer is required to provide a minimum of 3 days, or 24 hours, of sick leave per year. Paid sick leave may accrue at a rate of 1 hour for every 30 hours worked, and must be reflected on each wage statement. The law applies to full-time employees, as well as temporary, part-time, and seasonal employees. The law also provides paid sick leave to both non-exempt (hourly) and exempt (salaried) employees. Employees may begin using accrued sick leave on the 90th calendar day of employment.
In the alternative, an employer may use its own Paid Time Off (PTO) or sick leave policy if it accrues at the same or faster rate than the state-mandated accrual. Instead of waiting for sick leave accrual, an employer may provide the 3 days of sick leave up front at the beginning of the year. If the employer “front-loads” the amount of sick days in this way, sick leave may not be carried over to the next year. An employer may choose to cap the amount of paid six leave an employee may use per year to 3 days, or 24 hours, and the total amount an employee may accrue to 6 days, or 48 hours.
Some cities even require better protections for employees. In the city of Los Angeles, specifically, employers must provide employees with a minimum of 6 days, or 48 hours, of paid sick leave per year. Sick leave will accrue at the rate of 1 hour for every 30 hours worked and can be capped at 72 hours. Employers must retain records documenting hours worked and paid sick leave accrued for 4 years.
Q: Can an employee entitled to paid sick leave be disciplined for an unscheduled absence or for failing to provide insufficient notice of an absence due to illness?
No. If an employee has accrued sick leave, and is using his or her accrued paid sick leave for a purpose related to an illness or medical condition, the employer cannot discipline the employee. Even if the employer has an “attendance policy” that requires prior notice to the employer before being absent, an unscheduled absence cannot be considered a violation of the employer's policy. Otherwise, such discipline may constitute retaliatory conduct against a protected activity, which is prohibited by law.
Q: Can I take leave if I need to care for a family member who has COVID-19?
Paid sick leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or their family member. Preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended (or likely required) by civil authorities. There may be other situations where an employee may exercise their right to take paid sick leave, or an employer may allow paid sick leave for preventative care. These situations may include exposure to COVID-19 or where the employee has traveled to a high risk area.
Q: What if I run out of sick leave?
If paid leave is not available or has run out, and if the leave or absence is due to the employees' illness or the illness of a family member, then the California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA) may provide qualified employees with up to 12 weeks of unpaid, job-protected leave per year.
Q: I heard of new rules that broaden workers rights to paid sick leaves. What are these?
A recently enacted federal law, the “Families First Coronavirus Response Act,” expands the FMLA and mandates paid sick leave for eligible employees. Here are important points to note:
- Effective April 2, 2020 and ending December 31, 2020, the FMLA is temporarily expanded to cover all private-sector companies with fewer than 500 employees. Employees are eligible if they have been employed for at least 30 calendar days
- Covered employers must provide employees paid sick time to the extent an employee is unable to work (or telework) due to a need for leave because:
- The employee is subject to a quarantine or isolation order related to COVID-19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to an order of quarantine
- The employee is caring for a minor child whose school or care provider has been closed due to COVID-19 precautions.
Q: As a covered employee, will I get paid if I take a leave under the new rules ?
- The first 10 days of this expanded FMLA leave will be unpaid, although employees can use paid time off or sick time to cover some, or all of the initial unpaid period. After 10 days, the employer will be obligated to pay full-time employees 2/3 of their regular rate of pay for the employee's regular weekly hours for up to 10 weeks. Part-time employees or those with irregular schedules will be paid at 2/3 of their regular rate for the average number of hours worked over the prior 6 months of employment. Payments will be capped at $200 per day or $10,000 in the aggregate.
- Employers with fewer than 500 employees are required to provide full-time employees with 80 hours of paid sick time. This paid sick time is in addition to any paid sick leave already provided by the employer
Q: Can I seek reasonable accommodation for staying home due to the coronavirus? If so, what types of accommodation can I request?
For employees who have tested positive for COVID-19 or have been exposed to it and are now quarantined, you may request reasonable accommodation from your employer. Such reasonable accommodation may be in the form of allowing the employee an extended temporary leave of absence if, after the leave, the employee likely can resume his or her duties.
Additionally, if the employee can no longer perform the former job's duties, offering a vacant position may be a reasonable accommodation, even if the position pays less than the disabled employee's former job.
The employer has the duty to find and offer suitable jobs for the employee. Simply telling the disabled employee to check available job postings in the company is not enough. The employer must in good faith determine whether a disabled employee can be transferred or reassigned to a vacant position. The employer is in a better position to know what jobs are vacant or may become vacant.
Additionally, the law entitles the disabled employee to “preferential consideration” in reassignment of existing employees. However, the employer is not required to promote or create a new position in order to accommodate a disabled employee.
Q: What happens if I am fired for taking leave due to COVID-19?
California law prohibits discrimination based on disability or medical condition. California law defines disability (whether mental or physical) as any disease, disorder, cosmetic disfigurement, anatomical loss, emotional or mental illness, or specific learning disabilities, which limits a major life activity. Working at a job is considered a major life activity.
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 pay, loss of future earnings, damages for emotional distress, punitive damages, and attorneys' fees and costs in certain instances.
Q: Are other resources for struggling workers who are on work furlough due to the shelter-in-place mandates by civil authorities?
Yes. Lawmakers have recently passed what's being hailed as an “unprecedented expansion of unemployment insurance,” where the federal government will provide a historic $2 trillion package to Americans. Noteworthy provisions of the law would give jobless workers an extra $600 a week for four months on top of their state benefits, which range from $200 to $550 a week, on average, depending on the state. Independent contractors and so-called gig workers will also be eligible to receive federal aid. For more information regarding this, you are encouraged to visit the website of the Employment Development Department (EDD).
The information in this website is not a guaranty, warranty or prediction of outcome in any legal matter. Results are dependent on the facts of each case, and will differ if based on different facts.