WORKERS’ RIGHTS IN CALIFORNIA DUE TO COVID-19
April 3, 2020
By Morris Nazarian
In addition to the rights afforded to workers under the California Labor Code and the IWC Wage Orders, California workers have additional rights as a result of COVID-19 (CORONAVIRUS). On this page you will find information on your rights, including:
WAGE ISSUES FOR EXEMPT AND NON-EXEMPT EMPLOYEES
Exempt Employees Wage Issues:
An exempt employee is typically paid a salary and not per hour. Exempt employees are not entitled to overtime compensation. Click here for additional information regarding exempt employees: https://www.877calilaw.com/exempt-employee/
An exempt employee must be paid his or her entire salary if the employee works any time during the workweek. Even if the employee is working remotely, such as checking emails outside of the employer’s premises, an exempt employee is entitled to their full salary for that week.
If the exempt employee does not perform any work during the workweek, the employer can dock the exempt employee’s pay for that workweek.
Non-Exempt Employees Wage Issues:
A non-exempt employee is only paid for the hours worked. This includes hours worked away from the employer’s place of business.
Reporting Time Pay: If a a non exempt employee is sent home before the end of their shift and thus, works less than half of their usual or scheduled day’s work , the employee is entitled to be paid for half the usual or scheduled day’s work, but in no event for less than two hours nor more than four hours at his or her regular rate of pay.
Tracking Hours Worked: Even if the non-exempt employee works from home, the employer still has the burden to track the employees hours worked, including meal breaks, which must start before the end of the fifth hour of your shift.
Reimbursement for working from home: If your employer has asked the exempt or non-exempt to work from home, the employer is required to reimburse the employee for all necessary expenses, such as:
- Vehicle mileage
- Phones
- Internet
- Supplies
Even if you do not pay for your cell phone or internet bill (i.e. you are on your spouses or parents’ plan), the employer must pay for a pro-rate share of that bill.
COVID-19 AND LEAVES OF ABSENCE
Below are some of the reasons you may not be able to work and the law that may protect you:
You have been diagnosed with COVID-19 or your employer regards you as having COVID-19:
(1) Leave of absence under the Fair Employment and Housing Act (FEHA)– Coronavirus (COVID-19) is a respiratory illness. Under California law, a disability includes a mental or physical impairment, disorder, or condition that limits a major life activity. California courts have ruled that “working” is a major life activity. Therefore, you are entitled to a leave of absence as an accommodation under the Fair Employment and Housing Act (FEHA) if you are unable to work because you have been diagnosed with Coronavirus by a health care professional or your employer regards you as having Coronavirus, and your employer has at least 5 employees.
Recently, the EDD stated that if you are unable to work due to COVID-19 (certified by a medical professional), you can file a Disability Discrimination claim.
(2) Leave of absence under the FMLA or CFRA– If you work for an employer with 50 or more employees with in a 75-mile radius, the Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide that employees who have (a) worked for an employer (with 50 or more employees with in a 75-mile radius) for 12 months; and (b) worked for the employer for at least 1,250 hours in the 12 months prior to the need for the leave, may take up to 12 weeks of unpaid job protected leave.
(3) Paid Sick Leave- Most employees who work for an employer for at least 30 days are entitled to paid sick leave. This can also be used for your spouse, domestic partner, parent (biological, adoptive, or foster parent, stepparent, or legal guardian), child (biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis), parent-in-law, grandparent, grandchild, and sibling.
Your employer should not require you to provide medical certification and the employer may not condition use of sick leave on medical certification.
(4) Families First Coronavirus Response Act (FFCRA)– See below .
Your family member has been diagnosed with COVID-19:
(1) Leave of absence under the FMLA or CFRA– The FMLA provides that an employee can take a leave of absence to care for an immediate family members, which includes, your spouse, child or parent [CFRA also includes domestic partners]
(2) Families First Coronavirus Response Act (FFCRA or Act)– See below.
Your child’s school closes:
(1) Child-Related Activities Leave Law (Labor Code Section 230.8)- While you may use your vacation/PTO in accordance with company policies; If you work for an employer with 25 or more employees, you are also entitled to use up to 40 hours for “child related activities”, which includes: school emergencies.
Recently, the California Department of Industrial Relations issued guidance suggesting that employees may (but cannot be required to) use paid sick leave to care for their children during a school closure due to COVID-19
For more information visit: https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm
(2) Families First Coronavirus Response Act (FFCRA or Act)– See below.
THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA OR ACT)
Covered Employers are required to post the Families First Coronavirus Response Act (FFCRA or Act)
What is the Families First Coronavirus Response Act ?
- It is a new federal law which requires certain employers to provide their employees with paid sick leave or paid expanded family and medical leave for specified reasons related to COVID-19.
Covered Employees:
- Paid sick leave applies to all employers.
- Paid expanded family and medical leave applies to employees who have worked for the employer for at least 30 days.
Which Employers are required to provide paid sick leave?
- Certain Public Employers.
- Private Employers with fewer than 500 employees.
- Federal Employers
Which Employers are required to provide expanded family and medical leave ?
- Certain Public Employers.
- Private Employers with fewer than 500 employees.
- Federal Employers are NOT covered.
What are the specified reasons an Employee is entitled to a paid sick time?
- The employee is unable to work (or telework) because he or she has been quarantined due to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to COVID-19;
- The employee has CODIV-19 symptoms and is waiting to get a diagnosis;
- The employee is caring for an individual who (a) is unable to work or telework because he or she has been quarantined due to COVID-19 or (b) has been advised by a health care provider to self-quarantine due to COVID-19;
- The employee is unable to work (or telework) because his or her child’s (under 18 years old) school is closed or child care is unavailable due to COVID-19
Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
What are the specified reasons an Employee is entitled to expanded family leave?
- The employee is unable to work (or telework) because his or her child’s (under 18 years old) school is closed or child care is unavailable due to COVID-19
What is the duration of the leave?
- Sick Leave-
- Full Time Employees get up to Two Weeks (up to 80 hours).
- Part-time Employees get up to the average number of hours the employee works during a two week schedule. [Example: If you work an average of 35 hours for two weeks, you are entitled to 35 hours)
- Expanded Family Leave- Up to Ten Weeks
REQUIREMENTS TO PROTECT WORKERS FROM CORONAVIRUS
All employers are required by law to maintain a safe working conditions, this includes making efforts to protect you from being exposed to Coronavirus. For more information visit: https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html
DISCRIMINATION AND WRONGFUL TERMINATION
Many employees have been terminated from their employer because they have either been diagnosed with Coronavirus; their employer has regarded them as having coronavirus or becuase the employee has requested timeoff for a COVID-19 related reason, such as time off to care for a family member or due to school closures.
Both California law and federal law, including the Families First Coronavirus Response Act (FFCRA), protect employees from being discriminated against or terminated for unlawful reasons/
My office is committed to helping all individuals who are being denied rights during this stressful time. If you have any specific questions or if you believe that your employer is violating the law, contact the Law Offices of Morris Nazarian for a free consultation.
To schedule an intake appointment, contact us at (310) 284-7333 or (877) CALI-LAW (TOLL-FREE) or by email at monazarian@yahoo.com
The information on this page provides general information and is not meant to serve as legal advice. Nothing contained in this e-mail shall be construed as legal advice, including any tax advice of any kind.
