Drew Lewis
Employment Law Attorney
Last Updated:
- March 23, 2020
BREAKING UPDATES:
We realize that things are constantly evolving so we’ll be keeping this document updated to address any changes.
Last Updated: Monday March 23rd @ 11:10 am
Employees across California are having their employment upended by the Coronavirus (COVID-19) pandemic.
- Schools are closed, and many parents are having to stay home to take care of their kids.
- Businesses are shutting down (voluntarily or by State order) to help limit the spread of the virus.
- Employees want to work from home to stay healthy or self quarantine.
Know your rights as a California employee, and learn how to keep your job and your pay during this time of uncertainty.
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Article Contents:
Can I take time off to take care of my kids during school closures?
Question #1
Can I take time off to take care of my kids during school closures?
UPDATE 3/18/2020: The President signed the Emergency Paid Sick Leave Act on March 18, 2020. It is expected to go into effect by April 3, 2020. When it does, many workers will be entitled to receive up to 80 hours of paid sick leave for Coronavirus-related absences. Covered absences include:
Additionally, if you work for a company with 25 or more employees at the same location, you are entitled to up to 40 hours of unpaid leave each year to address an emergency involving your child care provider or you child/ren’s school. Your child/ren must either be in grades 1 through 12 or of the age to attend child care.
Your employer is only required to authorize use of 8 hours per calendar month of leave under the law. But your employer can be more generous and authorize use of the full 40 hours or even more. Your employer may require you to use existing vacation or personal time off, but your employer cannot discriminate, retaliate or terminate you for exercising this leave.
If your child/ren are not sick or you are not eligible for leave under the Paid Sick Leave law, the Family Medical Leave Act or the Fair Employment and Housing Act, your employer currently is not obligated to allow you to take time off to provide childcare.
The state legislature is aware of this gap in leave and is currently considering several pieces of legislation. AB 3132 would make it illegal for an employer to discriminate, retaliate or terminate employees who are forced to stay home due to a public health emergency.
Additional Resources:
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What Do I Do If My Employer Closes for the Next Few Weeks?
Question #2
What Do I Do If My Employer Closes for the Next Few Weeks?
Unemployment insurance is a state benefit which every employee pays into that provides between $40 and $450 per week between 12 and 26 weeks. Many employers are voluntarily closing or being forced to close. Others are significantly reducing work hours for employees. If you are laid off, are sick or quarantined, or your employer has reduced your hours, you are likely eligible to collect unemployment insurance.
Additionally, if you become sick or are required to take care of a seriously ill family member while unemployed, you are likely eligible to for California’s Paid Family Leave. Paid Family Leave provides between $50 and $1,300 per week for eight weeks to cover lost wages while taking care of your own serious illness or that of a family member. You do not need to be currently employed, but you must be looking for work.
Additional Resources:
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When am I protected from retaliation from my employer for Coronavirus-related issues?
Question #3
When am I protected from retaliation from my employer for Coronavirus-related issues?
Many laws that provide wage replacement (Unemployment Insurance, Paid Family Leave, Paid Sick Leave, Disability Insurance) do not protect you from retaliation at work. There are, however, numerous laws that prohibit your employer from retaliating against you:
Emergency Paid Sick Leave protects workers who request time off as a result of the Coronavirus. Eligible employees who take time off because they are required to shelter in place or self-quarantine, or whose children’s school or day care has closed, are protected from retaliation and discrimination.
Paid Sick Leave
Under the Paid Sick Leave law, you are entitled to take sick leave to care for yourself or an ill family member. Employers are prohibited from discouraging or interfering with your use of paid sick leave and discriminating or retaliating against you for using it.
Fair Employment and Housing Act
The FEHA protects individuals who experience serious illnesses/disability that affect major life functions (i.e. concentrating, sleeping, breathing, etc.). Some employers are required to provide reasonable accommodation to help employees with illness or disability to perform their work, including providing the ability to work remotely.
Employers are prohibited from discriminating or retaliating against you for exercising your rights under FEHA. This includes refusing to provide you with a reasonable accommodation.
Emergency Child Care Leave
Emergency Child Care Leave allows parents up to 40 hours per year to take unpaid leave to address an emergency with a child care provider or school for the person’s children. Employers are prohibited from discriminating or retaliating against employees who use Emergency Child Care Leave.
Common Forms of Discrimination and Retaliation include:
- Demotion
- Suspension
- Reduction in pay
- Reduction in responsibility
- Termination/Firing
If you have experienced one of these forms of retaliation or are currently experiencing retaliation, you should contact an employment law attorney.
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What If My Employer Allows Me To Work From Home?
Question #4
What If My Employer Allows Me To Work From Home?
Many companies are allowing employees to work from home. The law does not generally require employers to make work-from-home or remote work arrangements available to workers. But if your employer does, you should be aware of your rights.
If you work from home, you are still entitled to the same rights as employees who work in an office. This includes your right to Paid Sick Leave and Paid Family Leave when you or a family member is sick or needs treatment.
It is also best practice to have a discussion with your supervisor about a Remote Work Plan. This plan should set expectations about your work arrangement including:
- What will your schedule be/will you work a modified schedule?
- What devices and systems will you need access to and how will you access them while working off-site?
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How Do I Qualify For Unemployment Insurance?
Question #5
How Do I Qualify For Unemployment Insurance?
Unemployment insurances provides between $40 and $450 per week of wage replacement. The program was recently expanded to provide replacement to workers beyond are:
- Sick or quarantined;
- Providing care to a child or family member;
- Have had your hours reduced;
Undocumented immigrants are not entitled to receive unemployment insurance.
If you are sick or quarantined you might also be eligible for Paid Sick Leave or Paid Family Leave. Unemployment Insurance is only a wage replacement program. It does not provide job protection.
Additional Resources:
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Do I Qualify For California Paid Sick Leave If I Feel Sick?
Question #6
Do I Qualify For California Paid Sick Leave If I Feel Sick?
Most employees qualify to take sick days under California’s Paid Sick Leave law. You are permitted to take sick leave to receive treatment or care (including preventative care) for your own illness or the illness of a family member. This means that you may take sick leave to take your child or parent, for example, to receive care.
Employers that fire, demote, reduce hours, suspend or take any other type of negative employment action against employees who take paid sick leave are violating the law and can be required to pay back wages, emotional distress and reinstate you to your job if you are fired.
If your paid sick leave runs out you might also qualify for California’s Paid Family Leave which provides between $50 and $1,300 per week for eight weeks to cover lost wages when you are caring for either yourself or a family member experiencing a serious illness.
Additional Resources:
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How Do I Qualify For Paid Family Leave?
Question #7
How Do I Qualify For Paid Family Leave?
If you have to take off work to care for a seriously ill family member, you could qualify for California’s Paid Family Leave which provides between $50 and $1,300 per week for eight weeks to cover lost wages. You do not even need to be currently employed to qualify for paid family leave. But you must be actively looking for work.
If you have a spouse or domestic partner, that person could also qualify for paid sick leave allowing your family to receive 4 months of wage replacement for taking care of a family member
Additional Resources:
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Can I Be Penalized or Fired for Needing to Self Quarantine?
Question #8
Can I Be Penalized or Fired for Needing to Self Quarantine?
Employees who have contracted the Coronavirus (Covid-19) may be allowed to self-quarantine under the new Federal Emergency Paid Sick Lave law. If you are sick with Coronavirus you are likely covered under the various California leave laws including the California Paid Sick Leave law. If you experience serious symptoms (as opposed to mild symptoms) from having Coronavirus you might be entitled to a reasonable accommodation under the Fair Employment and Housing Act which permits you to take an extended leave or work remotely.
Employers that fire, demote, reduce hours, suspend or take any other type of negative employment action against employees who take protected leave while sick are violating the law and can be required to pay back wages, emotional distress and reinstate you in your old job.
In an effort to be socially responsible, many employers are providing work-from-home or other time of remote work arrangements.
Additional Resources:
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Can I Apply for Unemployment if My Employer Closed Temporarily But Is Planning to Reopen At Some Point?
Question #9
Can I Apply for Unemployment if My Employer Closed Temporarily But Is Planning to Reopen At Some Point?
Yes. Workers who are temporarily unemployed because of Coronavirus (Covid-19) but expect to return to work within a few weeks can receive unemployment insurance. Normally, to be eligible for unemployment workers have to be actively looking for work. However, if you expect to be temporarily out of work, you do not need to conduct a job search. You still must be able to work though.
Under normal circumstances, EDD requires employees to wait one week before collecting unemployment insurance. Governor Newsom issued an exective order waiving this requirement for the near term.
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Is My Employer Required To Pay My Wages From the Current Pay Period If I Was Temporarily Laid Off?
Question #10
Is My Employer Required To Pay My Wages From the Current Pay Period If I Was Temporarily Laid Off?
Yes. But the date that the wages must be paid depends on how long the temporary layoff is expected to last. If your employer has laid you off temporarily, but expects to have you come back the following week, then your wages can likely be paid during the normal payroll cycle.
If your layoff is expected to last more than two weeks or if the date for return is uncertain, your employer is required to provide you with your paycheck at the time that you are laid off. If they fail to do so, you could be entitled to penalties until your wages are paid, even if the amount is small.
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Can I Be Fired For Staying At Home In Order To Comply With the San Francisco Bay Area's Shelter-In-Place Order?
Question #11
Can I Be Fired For Staying At Home In Order To Comply With the San Francisco Bay Area's Shelter-In-Place Order?
No. California has not instituted a statewide shelter-in-place order requiring that non-essential employees stay at home except under limited circumstances such as obtaining groceries or attending medical appointments.
The Shelter-in-Place order also exempted various employees who work in occupations deemed to be essential. (We are developing additional resources to assist workers to understand how the Shelter-in-Place order affects them. Check back soon.) Your employer cannot fire you or retaliate against you for following the Shelter-in-Place order.
Examples of retaliation include:
- Demotion
- Suspension
- Reduction in pay
- Reduction in responsibility
If you work in an occupation that is non-essential, your employer may still require you to work from home. If you are not sick or taking care of a seriously ill family member, but your employer tells you not to work, you could be eligible for Unemployment Insurance, Paid Sick Leave or Paid Family Leave.
If you work in an occupation that is exempt and not subject to the order, your employer may still require you to work and might, if you are not sick or taking care of a family member that is seriously ill, discipline you for failing to show up.
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I’m a salaried exempt employee – what are my rights?
Question #12
I’m a salaried exempt employee – what are my rights?
Exempt employees are paid by salary. If you are exempt, you are entitled to the same protections against discrimination and retaliation under the law (Fair Employment and Housing Act, Emergency Child Care Leave, California Paid Sick Leave and the Federal Emergency Paid Sick Leave) and wage replacement programs (Paid Family Leave, Unemployment Insurance, Disability Insurance, Paid Sick Leave) as hourly employees.
If you are exempt, you get the benefit of the Salary Rule. The Salary Rule provides that if you are paid by salary, the amount you are paid cannot based on the quality of your work or the amount of work you perform during the week. The rule generally prohibits your employer from reducing your salary or offsetting any absence with paid time off. This means that if you work a half-day during the week, you are entitled to your full weekly salary. However, if you perform no work, you are not entitled to be paid any amount of your salary.
There are some exceptions to the rule. Your employer may deduct an appropriate amount from your salary under the following circumstances:
- You take a day or more off for purely personal reasons;
Example:
Danny’s supervisor grants his request to take Monday and Tuesday off from work to find a store with hand sanitizer. Danny’s employer can deduct a proportional amount for the two days of work he took off.
- Your employer has a plan to provide compensate you for sick days (typically where Paid Time Off or Sick Pay is applied);
Example:
Sarah’s employer has a paid time off plan that requires her to use her PTO when she is sick and absent from work. Sarah has three days of PTO. Sarah contracts the Coronavirus and is out for Tuesday and Wednesday (she recovered quickly!). Sarah’s employer can apply two days of PTO as wage replacement against the two days of salary she would have earned.
- During your first or last week of employment you do not work a full week (in which case your salary can be prorated);
- If you take leave under the Family Medical Leave Act or California Family Rights Act, your employer can pay you a proportionate amount of your salary for the days you work (for example when you take intermittent leave).
Example:
Kevin takes 8 hours of leave each week under the Family Medical Leave Act. Kevin’s employer can deduct 20% of his normal salary for the week.
Can your employer reduce your wages?
Yes. Some employers, in an attempt to lessen the financial impact on their business, have begun to layoff or reduce the wages of their employees. This is legal if done properly. The reduction in wages must comply with the following requirements:
- The change must be done prospectively (not retroactively) after you have been notified of the change;
- The reduction cannot be done for taking protected leave;
- The salary must be at least twice the state minimum wage in order for you to remain an exempt employee.
The Salary Rule can get complicated. If you have questions or believe that your employer is breaking the Salary Rule, you should contact an employment law attorney to discuss.
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