Many of our clients have contacted us about how to protect themselves and their families as COVID-19 spreads across the Country. The rapid pace of the virus has led to calls for social distancing and the closure of almost all non-essential services to prevent further spread. The Centers for Disease Control and CDPH recommend working from home “if feasible.”
It is clear from recent advisories that workers have legitimate reasons for concern if they are still in the workplace. 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 and the impact on our medical community. This article is intended to answer frequently asked questions about your rights in the time of COVID-19.
Sick or Medical Leave Laws
Employees who are sick can take accrued paid sick days. How many sick days are available depends on employer policies. California law requires employers to provide minimally three days of paid sick leave, but most public sector employees have more.
Employers who retaliate against employees for taking sick leave that is required by law risk liability for 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).
Employers with at least 50 employees, are required 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, or believes they may have, 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.
FMLA and CFRA leaves are unpaid. However, many employees will have leave to cover this period or a disability plan.
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. Please email us for assistance in making this request if you need it.
The best practice for requesting accommodation is to submit written documentation that you have a disability (you do not need to disclose your condition) 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.
Disability under the FEHA is broadly construed to mean a physical or mental 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. While there is an exception that refers to the common cold 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, your first request may be telecommuting if you are able to do any part of your regular job remotely. 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 but it doesn’t hurt to ask. If your job cannot be done remotely, taking time off is also considered a form of reasonable accommodation. Employers cannot have blanket policies refusing to allow telecommuting or medical leaves as they have a duty to engage in a good faith interactive process with each employee who requests accommodation.
Discrimination or retaliation against a person with a disability, including disciplining them, treating them differently than other workers or terminating them is prohibited. 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 their specific health condition or disability.
California School Emergency Leave and Unemployment Benefits
If you miss work to care for your child after their school closes, you may also 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.
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. If you need to take care of your child due to the school closures notify your employer in advance of taking the time off.
Wage Replacement for Disability and Reduced Work Hours
Two state-run programs are available for employees in need of wage replacement 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 their 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 that is still not certain. 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 they don’t know of 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 your workplace is closed due to COVID-19 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. Some self-employed, independent contractors can qualify for UI. State Disability Insurance is only available for independent contractors who have enrolled in Elective Coverage.
Illness and Injury Prevention Programs and Worker’s Compensation
Cal/OSHA has issued Interim Guidelines for General Industry and protecting 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. Employers are responsible to provide compensation through the worker’s compensation system for injuries arising in the course of employment and can include exposure to COVID-19.
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.
For more information on COVID-19: