By Stephanie A. Sandler
During these uncertain times, many people have wondered — and asked their attorney friends — how the novel Coronavirus (“COVID-19”) will impact their jobs. What happens if they contract the virus? Does it matter where they may have contracted the virus? What if a family member is sick? What about childcare? What if the company shuts down?
As lawyers, our typical response of “it depends” seems insufficient in this already tenuous atmosphere. Fortunately for Californians, prior to COVID-19, the California legislature had already enacted sweeping employment laws to protect employees affected by any serious illnesses — now including COVID-19. And, the legislature is continually expanding and adding new laws to protect employees who have fallen ill because of COVID-19.
Generally, California employees are protected from discrimination, retaliation, and wrongful termination if they contract COVID-19, or have any other disability, under the Fair Employment and Housing Act (“FEHA”). This means that an employer cannot terminate an employee because the employee contracted the virus. Further, if an employee is particularly vulnerable to complications from COVID-19 due to heart disease, diabetes, cancer, asthma, or other health conditions, the employee is not only protected from discrimination, but may be entitled to reasonable accommodations from their employer to protect them from contracting the virus.
The caveat to this, of course, is if the employer is facing an undue burden, such as financial hardship. In that event, the employer may layoff employees or cut back operations — not because a particular employee has COVID-19, but because the employer can no longer operate at the capacity it was able to pre-pandemic. If the employee is laid off or has their work hours cut for a non-discriminatory reason, the employee may be eligible for Unemployment Insurance (“UI”), an employer-paid program that provides partial income replacement when an eligible employee becomes unemployed or has their hours reduced.
If an employee is sick, the employee’s income may also be temporarily supplemented through California State Disability Insurance (“SDI.”) SDI provides short-term benefit payments to eligible workers who have a full or partial loss of wages due to a non-work related illness, injury or pregnancy. Most California workers are covered by SDI through deductions from their paychecks (noted as “CASDI” on most paystubs.) To qualify, a worker must be unable to work for at least eight days and must submit medical certification by a health practitioner prior to the issuance of benefits.
However, an employee who tests positive for COVID-19 may have a workers’ compensation claim. On May 6, 2020, Governor Gavin Newsom issued Executive Order N-62-20, which states that employees who test positive for COVID-19 are presumed to have contracted the virus in the course of employment for purposes of awarding workers’ compensation benefits if certain criteria are met. The Order indicates that any COVID-19 related illnesses that occur between March 19, 2020 through July 5, 2020 are presumed to have arisen out of and in the course of employment if:
- The employee tests positive for or was diagnosed with COVID-19 within 14 days after the employee performed work at their place of employment and at the employer’s direction;
- The day the employee performed work was on or after March 19, 2020;
- The place of employment where the employee performed work was not the employee’s home or residence; and
- If the employee was diagnosed with COVID-19, as opposed to testing positive, the diagnosis must be “done by a physician who holds a physician and surgeon license with the California Medical Board, and the diagnosis is confirmed with further testing within 30 days of the diagnosis.”
If a California employee’s immediate family member contracts the virus and the employee needs to take time off to care for that family member, their job may be protected under the Family Medical Leave Act (“FMLA”) and/or California Family Rights Act (“CFRA.”) FMLA and CFRA protection, however, depends on the size of the company, the employee’s length of employment, and how many hours worked in the last 12 months. An employee may also qualify for California Paid Family Leave (“PFL”) to help supplement their income temporarily while caring for a family member infected with COVID-19, but PFL does not offer the employee job protection.
If the employee has children, and their childcare facility has shut down because of COVID-19, the employee may also have protection. Pursuant to California Labor Code section 230.8, employers with 25 or more employees working at the same location must provide employees with up to 40 hours each year to address an emergency at their child’s daycare or school. A closure due to COVID-19 qualifies as such an emergency. Employees, however, must still notify their employer ahead of time if they intend to take that time off. Employees may also be eligible for the “Families First” Coronavirus Response Act which provides employees with 12 weeks of paid leave, paid at two-thirds of regular pay up to a maximum of $200 per day or $10,000 total.
Although the landscape of California employment law is continually changing to adapt to the new needs of employees related to COVID-19, many protections are currently in place to help Californians navigate this crisis.