Update II: A Roundup of California Worker Rights in the Time of COVID-19

March 20, 2020 — by Andy Katz for CELA VOICE, The California Employment Lawyers Association’s blog Promoting Fairness and Equality in the Workplace

As COVID-19 spreads, many workers are considering how to protect themselves and their families – while worrying about their work and budgets.

At the time this blog post was last updated (March 20, 2020, 8:05 p.m.) the rapid pace of the pandemic has advanced from calls for maximizing social distancing in the general population to mandatory “shelter in place” orders to prevent further spread.  On March 19, Governor Newsom issued Executive Order N-33-20, mandating all residents to stay at home “except as needed to maintain continuity of operations of the federal infrastructure sectors.”  The Order is in effect until further notice.

The California Department of Public Health had previously issued “social distancing” recommendations and other guidance to protect public health, urging vulnerable populations including people who are 65 years or older, in addition to people with certain health conditions such as heart disease, lung disease, diabetes, kidney disease, and weakened immune systems.  Several County Public Health Departments, including Alameda, Contra Costa, San Francisco, San Mateo, Santa Clara, Santa Cruz, and Sonoma Counties also include people who are 60 years or older within vulnerable populations.  A UCSF Expert Panel advised: “Anyone over 60 stay at home unless it’s critical.”

Assessment of what workers should do to be safe, and the role they could play in helping slow the spread of the virus is beyond the scope of an article about legal rights. However, it is clear from recent advisories that workers have legitimate reasons for concern. Many people want to heed the call of public-health experts to stay home out of concern for the heightened risk of severe complications for vulnerable populations. Understanding how current laws may protect them is critical information to have as workers weigh these important decisions and advocate with their employers for what they need. This post provides an overview of where workers stand as of today, bearing in mind that many advocacy groups, including CELA (California Employment Lawyers Association) and its national counterpart, NELA, are pressing Congress and the California legislature to offer even more protection and much-needed relief to California workers as they try to make the choices that are best for themselves, their families, and society at large. Read on for important answers to frequently asked questions about California workers’ rights in the time of COVID-19.

I’M LOSING WAGES. WHAT WILL HELP?

California Workers Can Apply for Wage Replacement for Disability and Reduced Work Hours

Two state-run programs are available for employees in need of wage replacement during a “Shelter in Place” order, and to support social distancing for their health and safety – State Disability Insurance (SDI) and Unemployment Insurance (UI), both administered by the Employment Development Department (EDD). Governor Newsom’s Executive Order waived the usual one-week waiting period for people who are unemployed and/or disabled as a result of COVID-19.

State Disability Insurance eligibility defines disability to include any illness or injury preventing regular or customary work. Benefits cover 60-70 percent of wages up to a maximum of $1,300 per week for up to 52 weeks, and are tax-exempt. A worker must be unable to work for at least eight days, and must submit medical certification by a health practitioner prior to issuance of benefits. Applications may be submitted within 49 days of the first date they had to stop working because of disability.

While the EDD hasn’t yet confirmed that applications citing only age-related vulnerabilities will be approved, they have confirmed that people who cannot work due to “having or being exposed” to COVID-19, if certified by a medical professional, can file a Disability Insurance claim.

Older workers who are in an age-defined vulnerable population and who obtain medical certification of their age-related condition as an “illness” may also be eligible for disability benefits, although there is no certain answer to this question yet. When doctors or other healthcare providers are filling in the disability forms, they should consider using “R54,” the International Classification of Diseases code for “age-related physical debility” when there isn’t a more specific condition.

EDD also administers Paid Family Leave (PFL) benefits, allowing up to six weeks of PFL at the SDI rate to Californians who are unable to work because they are caring for an ill or quarantined family member with COVID-19, if certified by a medical professional.

If an employer closes the workplace due to COVID-19, including as a result of a “Shelter in Place” order, and doesn’t pay or only partially pays its employees, workers can apply for Unemployment Insurance (UI) or, if eligible, SDI. Unemployment Insurance benefits cover approximately 50 percent of wages, up to a maximum of $450 per week, which is taxable.

The EDD has outlined how self-employed, independent contractors can qualify for UI. State Disability Insurance is only available for independent contractors who have enrolled in Elective Coverage. Workers are often misclassified as independent contractors, and may have the same rights to benefits as employees under AB 5, even if their employer calls them an “independent contractor.”

WHAT IF MY CHILD’S SCHOOL IS CLOSED BECAUSE OF CORONAVIRUS?

Federal Response, California School Emergency Leave and Unemployment Benefits May Help Some Workers

If you miss work to care for your child after their school closes, you may be eligible for Unemployment Insurance. The Employment Development Department is handling school closure applications on a case-by-case basis, and encouraging claims for partial benefits where the employer is allowing reduced hours, but has not yet clarified whether the usual requirements of being available for work will be waived where the employer does not allow reduced hours. Employees should apply right away since the usual 7-day waiting period for benefits has been waived due to COVID-19. Read more about this below.

Once the ‘Families First’ Coronavirus Response Act goes into effect April 3, employees who have worked for a covered employer more than 30 days will be eligible for twelve weeks of leave, paid at two-thirds of regular pay, up to a maximum of $200 per day or $10,000 total.

Also, under California’s Labor Code, employers with 25 or more employees working at the same location must allow employees to take up to 40 hours of leave per year to address an emergency at a child’s day care or school. However, an employee must still notify the employer in advance.

WHAT IF I GET SICK, OR I NEED TO CARE FOR FAMILY?

State and Local Sick or Medical Leave Laws Offer Protection

Employees who are sick can take accrued paid sick days. How many sick days are available depends on employer policies, although California requires employers to provide minimally three days of paid sick leave and some cities require even more. Employees who work for employers of 50 or more people have more rights and may be eligible for up to twelve weeks of unpaid time off. Employees sent home but are asked to work must be compensated for that work without loss of sick leave.

The Healthy Workplaces, Healthy Families Act of 2014 (Lab. Code §§ 245-249, 2810.5) requires all California employers to provide eligible employees at least three days of paid sick leave. Los Angeles, San Diego, San Francisco, Santa Monica, Oakland, Berkeley, and Emeryville also have local ordinances requiring as much as six or nine days of sick leave per year.

Employers who retaliate against employees for taking sick leave that is required by law risk liability for wrongful termination lawsuits. What is clear is that the legally-required amounts of sick leave aren’t enough, especially if a worker is trying to get through a 14-day quarantine, or faces uncertainty with vulnerable members of their household. Workers who are often misclassified as independent contractors have the same rights to sick leave as employees under AB 5, even if their employer calls them an “independent contractor.” Misclassified employees can file claims in court or at the Department of Labor Standards Enforcement (DLSE).

For people who work for an employer with at least 50 employees within 75 miles of their worksite, California law requires employers to provide twelve weeks of job-protected leave each year under the Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA) for a “serious health condition” of the employee or a member of their family. To qualify for this leave, the employee must have worked for the employer for at least one year total during their lifetime and have worked at least 1,250 hours in the last calendar year. So, if an employee or family member contracts COVID-19, they are likely to be protected by the medical leave laws. These laws may also protect individuals with compromised immune systems if a doctor takes them off work because they or a family member suffer from a chronic condition.

It’s important to understand that FMLA and CFRA leave is unpaid (although State Disability Insurance may be available).

Additionally, on March 18^th, Congress passed the ‘Families First’ Coronavirus Response Act to provide emergency paid sick leave and emergency paid family leave.

WHAT IF I’M VULNERABLE TO COVID-19?

California’s Disability Rights Law Provides for Reasonable Accommodation

The law requires employers to consider offering work-from-home or medical leaves of absence as a reasonable accommodation under the California Fair Employment and Housing Act (FEHA) for people who qualify as having a disability under the law. This is a case-by-case analysis, but employees with compromised immune systems or who are medically at risk should assert their rights and request the accommodations they need to remain safe.

California employers with at least 5 employees are required to provide reasonable accommodations, unless they are able to meet a very high standard to prove that doing so would cause an undue hardship.

Legal Aid at Work has a very helpful guide on how to request a reasonable accommodation. The best practice is to submit written documentation of the disability and the need for the accommodation, including a doctor’s note. If that’s not possible given the impacted healthcare system, employees can explain their need for accommodations to their employer and refer to publicly-available information to justify the need for reasonable accommodation.

For instance, the California Department of Public Heath urges high-risk individuals to “stay home as much as possible,” and the San Francisco Department of Public Health urges workers to “telecommute if possible,” and “avoid contact with people who are sick.”

The extraordinary conditions and risks of COVID-19 will broaden the range of employees who qualify for reasonable accommodations under FEHA. Disability under FEHA is broadly construed to mean a physical disability, including a condition that affects the immunological system and limits a major life activity. The law already recognizes that “major life activities” include interacting with others, working, and major functions of the immune system. There is an exception that refers to the common cold and common flu, but there is nothing common about COVID-19, so that exception should not apply.

The goal of reasonable accommodations is to keep the employee working (and earning a paycheck). So the first possibility to consider is telecommuting. Telecommuting is a reasonable accommodation where it allows the employee to continue to perform the essential functions of their job. For employees who can work via computer, video-conferencing and phone, this is an ideal choice. Employers can refuse this accommodation if letting the employee telecommute imposes an undue hardship on the employer’s operations.

If a job cannot be done remotely, a last-resort accommodation is a leave of absence, which is an option under the law where “the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer.”

Employers cannot have blanket policies refusing telecommuting or medical leaves (or any other possible accommodation). Instead, employers must engage in a good faith interactive process to find an effective reasonable accommodation.

Discrimination or retaliation against a person with a disability, including disciplining them, treating them differently than other workers or terminating them is prohibited under California law. This protection extends to people who the employer assumes or “regards” as a person with a disability. While employers can require medical documentation of a disability and the employee’s limitations, they cannot force employees to disclose a specific health condition or disability.

WHAT IF SOMEONE I LIVE WITH IS VULNERABLE TO COVID-19?

The California Family Rights Act (CFRA), discussed above, requires twelve weeks of job-protected leave for covered employees caring for a “serious health condition” of a family member.  Up to six weeks of Paid Family Leave (PFL) benefits are available through the EDD.

Employees are also protected under the California Fair Employment and Housing Act (FEHA) from discrimination or retaliation, such as harassment or wrongful termination, due to a known relationship or association with someone with a known disability.  This includes making a request for a reasonable accommodation, whether that request is granted or not.  While no court has ruled yet on the specific issue of whether an employer must grant an accommodation based on a family member’s disability, one Appellate Court considering this issue discussed the possibility that the law “may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person.”

It is highly recommended to review this type of complex situation with an attorney familiar with employment law.

WHAT IF I AM OR COULD BE EXPOSED TO COVID-19 IN MY WORKPLACE?

Employer Illness and Injury Prevention Programs

In furtherance of its mission to ensure safe workplaces and enforcing requirements for all employers to have an Injury and Illness Prevention Program, Cal/OSHA has issued Interim Guidelines for General Industry and other specific industries, like childcare providers and health-care workers, from COVID-19. These guidelines include actively encouraging sick employees to stay home, sending employees with acute respiratory symptoms home immediately, and preparing an outbreak response plan in the event of an outbreak.

For an employee who is concerned about workplace safety, “internal” whistle-blowing is a protected activity when a complaint is made to a manager that identifies facts that could violate Cal/OSHA requirements.  For more serious situations, formal complaints can be filed with Cal/OSHA, and written documentation could assist if the employer disputes that internal whistle-blowing occurred.

An employee may also refuse to perform work that would result in a Cal/OSHA violation that creates a real and apparent hazard to the employee or their coworkers. These situations are complex, and consultation with an attorney is highly recommended, because an employer can take the position that an undocumented failure to go to work is a non-retaliatory business reason to terminate employment.

Determinations of which precise businesses and functions are deemed “essential” are made by the Department of Public Health and County Health Officers.

Worker’s Compensation

Employers are responsible to provide compensation through the worker’s compensation system for injuries arising in the course of employment.

An injured worker who was exposed to and contracted COVID-19 at or through their work can make a claim by completing DWC1 form and sending it to their employer.

Any workplace exposure must be a significant contributing factor to an employee’s injury. Employers frequently dispute whether an injury is work-related. Those disputes are typically resolved by the Worker’s Compensation Appeals Board based on the medical report of a Panel Qualified Medical Examiner appointed by the Division of Worker’s Compensation, likely a specialist in Immunology or Internal Medicine.

If the claim is approved, benefits include temporary disability wage replacement, medical care, and compensation for permanent impairment. Unfortunately, misclassified independent contractors who are employees under the new “ABC Test” of AB 5 (2019) are not eligible for worker’s compensation until July 1, 2020.

More Protections Needed During this Public Health Emergency

Additional protections are needed during this public health emergency. California Governor Gavin Newsom, members of the California Legislature, and the United States Congress have announced plans to introduce legislation that may further protect workers subject to an isolation or quarantine order by a health official from discrimination or retaliation, or offer better wage replacement for people who are in quarantine or caring for family members.  Stay tuned to this post for ongoing updates.

About Andy Katz

Andy Katz is the principal of Law Offices of Andy Katz, fighting for workers’ rights, consumers, and environmental protection. His law practice focuses on workplace discrimination and retaliation, wage theft, workers’ compensation, and health and disability insurance denials. He previously advocated for public health issues before the California legislature. He is a member of the California Employment Lawyers Association (CELA). Web: www.andykatzlaw.com