The Rights of California Workers Affected by the Coronavirus/Covid-19 Health Emergency
- October 6, 2020
- David Levy
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The following is a brief discussion of several California and federal laws protecting employees affected by Covid-19. The application of these laws depends on the circumstances and requires a case-by-case analysis.
Employers are prohibited from discriminating against employees who are disabled, are regarded or treated as disabled, or may become disabled in the future. Illness related to Covid-19 may rise to the level of a disability depending on the facts. Although it is not yet settled under California law, a California court would likely deem an employee suffering from Covid-19 to be disabled. Therefore, employees may have discrimination claims if they are fired, laid off or subjected to other adverse actions because they are ill with Covid-19 (or perceived to be ill with or vulnerable to Covid-19, including due to their age).
LEAVES OF ABSENCE:
Employees may be entitled to leave due to illness or to care for family members under various California and federal laws. Among other laws, an employee who is sick with Covid-19 and unable to work or subject to quarantine may be entitled to leave under the California Family Rights Act (“CFRA”), the Family and Medical Leave Act (“FMLA”), the Families First Coronavirus Response Act (“FFCRA”) or the California Labor Code.
CFRA was recently expanded to provide an employee with up to 12 weeks of unpaid, job-protected leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition. CFRA, which previously applied only to employers with 50 or more employees, was also expanded to apply to employers with five or more employees.
FFCRA, which generally applies to employers of between 50 and 500 employees, provides up to 12 weeks of leave to an employee to care for a child whose school or child care provider is closed for reasons related to Covid-19.
The California Labor Code prohibits employers of 25 or more employees from retaliating or discriminating against an employee for taking up to 40 hours of leave per year to address a child care provider or school emergency, if the employee gives notice to the employer.
Employers may have an affirmative duty to provide reasonable accommodations to employees for (1) illnesses related to Covid-19, (2) pre-existing conditions that makes them vulnerable to Covid-19, or (3) to care for others with or vulnerable to Covid-19. Such accommodations include, but are not limited to, allowing employees to take leave, holding jobs open for employees, allowing employees to working remotely or changing employees’ schedules or other working conditions. When applicable, it is not only unlawful for an employer to fail to make reasonable accommodations for an employee, it is also unlawful if the employer does not engage in a good-faith, interactive process with an employee to determine reasonable accommodations.
Employees may have retaliation claims against their employers if they are fired or otherwise retaliated against for raising violations of federal, state or local Covid-19 orders (or refusing to work under such circumstances or other unsafe working conditions), whistleblowing or exercising the rights discussed above.
Finally, California workers affected by COVID-19 may qualify for sick leave, unemployment benefits and/or disability insurance benefits.