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Covid-19 Employee Rights

Posted by Eric Kingsley | Mar 29, 2020 | 0 Comments

 
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Unfortunately, we cannot assist with unemployment claims. Those who have been wrongfully terminated are encouraged to contact us.

The coronavirus pandemic is shaking the entire nation to the core as no other event has in recent history.

Employees are facing significant and frightening challenges including layoffs, reduced hours, furloughs, temporary suspensions, reduced hours (and therefore, reduced pay), and loss of health insurance at a time when they need it most.

There are a number of businesses and a range of workplaces that are being affected by the shelter-in-place order including but not limited to bars, restaurants, movie theaters, gyms, schools, dentists, optometrists, hair salons, nail salons, barbers, retail stores and any business that is not considered an "essential operation."

The complete economic impact of COVID-19 on businesses and employees in California will not even be fully known for a while, but we all do know that it's going to be devastating.

Furloughs and Layoffs

As the coronavirus spreads across the state, thousands of jobs are being lost.

While the most ideal option is to offer paid leave, that may not be feasible for some smaller businesses.

Some employers are opting for furloughs, which allow them to reduce labor costs without completely letting go of employees.

An employee furlough is a suspension from work without pay for a finite period of time.

It could be voluntary, but often, it is mandatorily imposed by employers to cut costs.

For example, during the federal government shutdown, workers were furloughed as a cost-saving measure.

Layoffs are permanent job terminations.

While laid-off workers may be rehired sometimes, the term refers to an indefinite or permanent break in the employment relationship. 

Laid-off workers are essentially fired or terminated, triggering final pay requirements such as a final paycheck and vacation payout.

On the other hand, furloughed workers are still employed and typically do not receive an official final paycheck or vacation payout.

There may be some cases where a furlough can trigger final pay requirements.

It is best to check with an experienced Los Angeles employment lawyer who can counsel you depending on your particular situation.

A furlough may also trigger COBRA, which gives employees the ability to continue health insurance coverage, a critical issue when there is a pandemic and risk levels of falling ill and requiring hospitalization are relatively higher.

Depending on how long a furlough goes on and how many work hours are cut, COBRA might set in if an employee is dropped from a group health plan due to loss of work hours.

Under the Affordable Care Act, an employer cannot prematurely drop a furloughed employee from group coverage.

The federal Worker Adjustment and Retraining Notification or WARN Act also requires employers to provide written notice of at least 60 days in advance of plant closings or mass layoffs.

The WARN notice requirements kick in for businesses that have 100 or more employees hat lay off at least 50 people at a single site.

Misclassification and Unemployment Claims

Employers are also not allowed under the law to cut pay of exempt employees without jeopardizing their exempt status.

If an exempt employee performs work in any week, they are required to be paid their salary.

It is important to watch out, especially during these times, for misclassification of workers.

Employers may attempt to classify workers illegally as "non-exempt" or put them on "temporary" status to avoid paying them their full salaries or benefits.

Both laid-off and temporarily furloughed workers are eligible to receive unemployment benefits if they have earned an adequate amount of wages over the previous year to qualify.

However, right now, California has been swamped by an unprecedented number of unemployment claims.

According to a report in the Los Angeles Times, Gov. Gavin Newsom has said that just in the past 12 days, the state has received 1 million applications for unemployment benefits, which highlights the sharp economic impact the COVID-19 crisis has had on business closures and California's economy. 

Reimbursement of Expenses for Working at Home

As part of the effort to prevent community spread of the coronavirus, many employers are allowing, and in some cases, requiring employees to work from home.

Under California law, some employers may be required to reimburse employees for certain expenses incurred as a result of working from home such as additional equipment that might become necessary, cell phone, Internet or Wi-Fi without which a job cannot be performed or may be hard to perform.

California Labor Code Section 2802 requires employers to indemnify employees for all expenditures or losses incurred by employees directly as a result of performing their job duties.

So, California employers should make a determination as to what those expenses are and reimburse them as appropriate. 

COVID-19 and the Family Medical Leave Act (FMLA)

If employees are out with the coronavirus or are caring for family members who are ill, your leave may be covered under the Family and Medical Leave Act or FMLA.

Under the FMLA, covered employers are required to provide employees job-protected, unpaid leave for specified family and medical reasons, which may include the coronavirus.

Employees on FMLA are also entitled to continuation of group health insurance coverage under the same terms that existed prior to them going on FMLA leave. 

Employees are eligible to take FMLA leave if they work for a covered employer and have worked for that employer for at least 12 months; have at least 1,250 hours of service over the prior 12 months; and work at a location where at least 50 employees are employed within 75 miles.

The FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave for specified family and medical reasons. This may include the coronavirus where complications arise that create a "serious health condition" as defined by FMLA.

Under FMLA, a "serious health condition" means an illness, injury, impairment, or a physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

"Incapacity" refers to the inability to work, attend school, or perform other regular daily activities due to a serious health condition or treatment for or recovery from a serious health condition.

Treatment includes but is not limited to diagnostic tests or exams to determine if a serious health condition exists. It doesn't include routine exams.

"Inpatient care" under FMLA means overnight stay in a hospital, hospice or residential medical care facility including any period of incapacity or subsequent treatment in connection with such inpatient care.

"Continuing treatment" by a healthcare provider includes several distinct definitions and can include conditions with short-term, long-term, chronic or permanent periods of incapacity.

Employers must prepare a plan of action specific to their workplace as a pandemic outbreak could affect many employees.

This plan must also comply with laws prohibiting discrimination in the workplace on the basis of race, sex, age, color, religion, national origin, disability or veteran status.

Family First Coronavirus Response Act (FFCRA)

There are some provisions of the FMLA that have been altered by the Families First Coronavirus Response Act (FFCRA) into law, signed into law by President Donald Trump, which is set to take effect no later than April 2 and will continue to Dec. 31, 2020.

This law forces employers with fewer than 500 employees to provide paid family leave to employees with 30 days or more of tenure, who are unable to work on location or remotely because of childcare needs triggered by the coronavirus pandemic. 

This emergency law also calls for paid sick leave to all employees (regardless of tenure) to those who are not able to work because of government shelter-in-place orders, COVID-19-related illness and other circumstances triggered by the coronavirus.

Here are some of the highlights of the Emergency Family and Medical Leave Act:

  • An employee who is unable to work remotely can take up to 12 weeks of job-protected leave to care for his or her minor child if the child's school or childcare provider is closed due to COVID-19.
  • The act applies to employees who have been employed for at least 30 calendar days before the Emergency Family and Medical Leave Act took effect. The existing federal FMLA requirements that the employee be employed for a year, worked for 1,250 hours and works in a location where there are 50 employees within a 75-mile radius will not apply in this emergency situation.
  • The first 10 days of the emergency leave can be unpaid. But employees can choose to use up accrued sick time, vacation time, etc. to cover that time.
  • For full-time employees, the remaining time should be paid at two-thirds of the employee's regular rate of pay. This amount is capped at $200 per day and $10,000 in the aggregate, per employee. For part-time employees, the remaining time must be paid based on the average number hours the employee worked for the six months prior to taking Emergency FMLA.
  • Employers who have 25 employees or more must return any employee who has taken emergency FMLA to the same or equivalent position when they return to work.

Rights of Employees During the COVID-19 Pandemic

Here are some of the most commonly asked questions about workers' rights during the COVID-19 pandemic, answered. 

Do I have a right to work from home or take leave if I have underlying health conditions? 

Yes, you have that right under the Americans with Disabilities Act. If you have an underlying health condition that increases your risk of complications, you have the right to ask to telework or take leave. This may include individuals with diabetes, high blood pressure, heart disease, lung disease or those whose immune systems are compromised. Those who have mental health conditions such as anxiety can also request remote work or leave.

There are general workplace protections for non-essential workers. If there are no local mandates for you to show up, you are within legal grounds to stay home if you are near a hot zone where a number of infections have been reported. The Occupational Safety and Health Administration (OSHA) has a "General Duty Clause," which requires workplaces to offer environments that are free from hazards that are causing or likely to cause death or serious harm to employees. COVID-19 clearly counts as something that is likely to cause serious injury or death. 

Do I need to still come in to work if I'm considered an "essential employee?"

If your work cannot be done remotely, you probably need to come in to work. However, if you are able to do your job remotely, even if it's with certain accommodations, you have the right to work remotely. Similarly, if your work requires in-person interaction, but coworkers with the same position are being allowed to take leave, you have the right to take leave as well. 

If I self-quarantine and cannot work remotely, will that time come out of my vacation days?

In such situations, it is important to check your employer's policy. Generally speaking, those with 50 or more employees offer more flexibility with paid leave. But, if you work for a smaller company and your employer has a written policy saying you must use your vacation and sick days before taking paid leave, you might just have to do that.

Can I claim unemployment if I'm told to stay home from work and am not getting paid?

Yes. If you are put in a position outside your control such as being forced to quarantine, but are not getting paid, you can seek unemployment compensation. 

Am I protected from getting laid off? 

If you work for a larger company, your employer is required to put you on notice before issuing mass layoffs. However, if you work for a smaller employer, they could shut down the business overnight. They might just owe you the wages you made when the business was up and running.

Get Help From California Employment Lawyers

If you are in California and believe your rights as an employee have been violated during this trying time, please contact our California employment attorneys at 888-500-8469.

We are here to answer any questions you may have about your employment status, FMLA, the recently enacted Emergency FMLA or any employment issue related or unrelated to COVID-19.

We understand that this can be a confusing and harrowing time for employees and their families. We are here to serve you in your time of need.

Unfortunately, we cannot assist with unemployment claims. Those who have been wrongfully terminated are encouraged to contact us.

 

About the Author

Eric Kingsley

In practice since 1996, the firm's lawyer and co-founder, Eric B. Kingsley, has litigated complex cases and written numerous appeals in state and federal courts on behalf of the California law firm Kingsley & Kingsley, including More than 150 collective actions. Mr. Kingsley focuses his practice ...

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