As California employees scramble to understand the recent changes in the law as it relates to the Coronavirus (Covid-19), the following resources to the community generally and as to protections available to California employees in light of the Coronavirus pandemic.
– Federal and California tax return deadlines have been extended until July 15, 2020. FTB.ca.gov.
– All public and private schools have closed, most likely for the rest of the school year, but some are providing students with free meals during the weekdays (including lunch and sometimes breakfast).
– Daycares are still open, but only for children of parents working in essential sectors. Babysitters may also come to the house to care for minors of parents working in essential sectors.
– You can leave home to care for elderly parents or friends and family that are disabled or who require assistance to care for themselves.
– The California Department of Economic Opportunity has waived the waiting period for unemployment and disability insurance for those who lose work as a result of the COVID-19 outbreak; benefits to workers who are laid off for “lack of work” are available as well. EDD.ca.gov. As of March 19, 2020, California issued Executive Order N-33-20 directing all residents to heed current State public health directives critical infrastructure sectors and additional sectors as the State Public Health Officer may designate as critical to protecting health and well-being of all Californians.
The following sector employees are considered “Essential Workforce”:
– Healthcare/Public Health
– Law Enforcement, Public Safety, and First Responders
– Public Works
– Food and Agriculture
– Electricity Industry
– Petroleum Workers
– Natural and Propane Gas Workers
– Water and Wastewater
– Transportation and Logistics
– Communication and Information Technology
– Community-Based Government Operations
– Critical Manufacturing
– Hazardous Materials
– Financial Services
– Chemical Sector
– Defense Industries
All other employees are considered “non-essential” and subject to the stay at home order.
As of March 18, 2020, the Federal Government enacted the Families First Coronavirus Response Act, which gives employees the following assistance:
– Allows employees to go on FMLA leave if they have been employed for at least 30 calendar days with the employer, as opposed to 12 months previously required.
– Expands FMLA to apply to all employers with fewer than 500 employees, instead of employers with 50 or more employees.
– Allows employees to take leave if the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency
– The first 10 days for which an employee takes leave is unpaid leave, but the employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.
– The next 10 days thereafter are paid.
– Employees will need to provide the employer with notice of leave as soon as practicable
– Employers are responsible to restore the employee in their position, but not if the employer employs fewer than 25 employees, the position is no longer available, the employer makes reasonable efforts to restore the employee to an equivalent position; and if none are available the employer contact the employee within 12 weeks thereafter if such position becomes available.
– Full-time employees are entitled to 80 hours of paid sick time (or two weeks pay for part-time employees) to the extent that the employee is unable to work (or telework) due to a need for leave because:
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
(5) The employee is caring for a son or daughter of such an employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
– An employer may not require, as a condition of providing paid sick time under this Act, that the employee involved search for or find a replacement employee to cover the hours during which the employee is using paid sick time.
– It shall be unlawful for any employer to discharge, discipline, or in any other manner discriminate against any employee who—
(1) takes leave in accordance with this Act, and
(2) has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act
If an employee is required to work in a “non-essential” job, the employer is in violation of California law. The employee will have the same rights under the whistleblower protection laws if they object and/or refuse to show for their scheduled work shift.
Additionally, if an employee is required to work in a workplace where there are Covid19 risks, the employer might be violating Labor Code section 6310 and again the employee is protected from retaliation for objecting to or refusing to work in those conditions (See, Labor Code Section 6311).
Lastly, employees who are experiencing Covid19 symptoms may be protected under California’s anti-discrimination laws, administered by the Department of Fair Employment and Housing. DFEH.Gov. Thus, if an employee notifies the employer of their symptoms, the employer cannot discriminate against this employee and must engage in an interactive dialogue with the employee about how an accommodation can allow the employee to continue working there as opposed to being laid off or terminated.
Frequently asked questions:
Q: What if my employer sends me home early from work because I am sick?
A: If you are a non-exempt employee and you are sent home before working a full shift, the employer must pay you at least two hours or no more than four hours of reporting time pay.
Q: Can my employer ask me about my medical condition/history, if I have a cough, fever or other Covid19 symptoms?
A: No. This may be illegal.
Q: Can my employer take my temperature without my approval?
A: Taking your temperature without your permission may be considered a violation of your right to privacy and invasion of your right to medical “records” privacy.
Q: Does my employer have to inform us if someone is diagnosed with Covid19?
A: Employers should advise other employees who may have had contact with other employees about possible exposure to COVID-19. But they cannot disclose the name of the affected employee and must take all possible steps to maintain the confidentiality of the affected employee.
Q: What should I do if I no longer feel safe to work with another employee out of fear of contracting COVID-19?
A: You should inform your employer right away and ask that they take steps to keep you and other workers safe from possible exposure. Notifying your co-workers of possible contamination by another worker could violate that other employee’s right to privacy and be against company policy.
Q: Can I file a Workers Compensation case if I get Covid19 at work?
Q: Does my employer still have to give me 60-days notice before laying me off as required by the WARN Act?
A: No. Governor Newsom has signed an executive order exempting businesses with more than 75 employees from giving notice of a mass layoff. Instead, these employers must give employees “as much notice as is practicable” and provide “a brief statement of the basis for reducing the notification period.”
*This advisory blog on COVID-19 employment issues in California should be considered educational, not legal in nature. The rules and regulations concerning benefits available, as well as any definitions of legal rights and duties by employees and employers, is expected to change regularly over the coming weeks and months. As this blog may not be updated regularly, you should seek new and current information, including from us, as your questions arise.