The spread of the novel coronavirus continues unabated. Each day, thousands of Americans are diagnosed with the virus, many of whom suffer complications that require hospitalization. In response, state and local governments have ordered shutdowns of non-essential businesses.
Unfortunately, not all employers are able or willing to let employees work from home. For those in certain industries, working remotely is simply impossible. As experienced California employment lawyers, we realize many workers are panicked right now and have many questions.
Can your employer fire you if you come down sick or need to take care of a loved one? And what if you have no sick leave?
General Law: At Will Employment, but with Key Exceptions
California is an at-will state, which means that employers can typically lay someone off for any valid legal reason. There are exceptions to at-will employment, such as layoffs against public policy. And someone on a contract can only be terminated according to its terms.
If you don’t have a contract, you have very few rights. If an employer wants you to come into work and you don’t, they have ample legal justification to let you go. However, if you are currently under order to shelter in place and your job is not considered essential terminating an employee who refuses to go to work in violation of the governor’s order may be in violation of public policy and illegal. Additionally, Congress has just created a new emergency right to family and medical leave, along with paid sick time for certain employees.
Expanded Family and Medical Leave Act (FMLA)
Congress has passed a law providing for an emergency expansion of the current FMLA. Without going into too many details, the new law is much broader than regular FMLA. It applies to all employers with fewer than 500 employees and protects employees who have worked for an employer for at least 30 days.
An eligible employee can take up to 12 weeks of leave if their child’s school or daycare has been closed due to the COVID-I9 pandemic. The first 10 days are unpaid, but employees can use some of their own accrued sick leave or vacation time during this 10-day period. After 10 days, an eligible employee can receive two-thirds of their income for hours normally worked up to a maximum of $200 a day and $2,000 in total. You may also qualify for disability if you or a family member that requires your care are sick with Corona virus or are immunocompromised and at significant health risk if exposed.
If you fall sick, you might be able to take leave under the regular FMLA. This law applies to a limited number of people who have worked for their employer for at least 12 months and meet other requirements.
An employee who requests leave cannot be let go for that reason, so this does protect employees. This expanded leave goes into effect on April 2, 2020. You must provide your employer with sufficient notice of your need for leave.
Paid Sick Leave
Many employers unfortunately do not provide sick leave. Congress has just passed a law that applies to all employers with fewer than 500 employees that makes them eligible for paid sick leave under the Emergency Paid Sick Leave Act. Employers are prohibited from taking an adverse action because an employee uses these benefits.
You are covered and can take sick leave for the following reasons:
- You are subject to a governmental quarantine for COVID-19.
- A doctor or other health care provider has advised that you self-quarantine because of possible COVID-19 transmission.
- You are experiencing symptoms of the virus and seeking a medical diagnosis.
- You are caring for someone who is subject to a quarantine or is in isolation after being advised by a doctor to self-quarantine. Under the letter of the law, this person does not have to be a family member.
- You are caring for your child whose school was closed or whose daycare was closed due to COVID-19.
- You are experiencing a substantially similar condition specified by the Secretary of Health and Human Services. This will be fleshed out later.
Full-time employees are eligible for 80 hours of paid sick leave. Part-time workers are also eligible for a number of hours based on how much they work in a two-week period.
The amount you receive depends on the reasons for taking leave. If you request sick leave for the first three reasons, you should receive your regular rate of pay, up to $511 a day and $5,110 in total. If you request sick time for reasons 4-6 above, you will receive two-thirds your regular rate, up to no more than $200 a day and $2,000 in total.
If you have other paid sick leave, you are not required to use it first before using the sick leave provided under this emergency Act.
Contact a California Employee Rights Attorney with Questions
These new laws were passed quickly, and employers are still trying to figure out how to apply them. If you believe you have been terminated unlawfully, please contact Wagner Zemming Christensen today for a free consultation.