Archives for March 2020

What Are Employees Entitled To Under the Stimulus Package?

On Friday, March 27, the White House and Congress approved the largest emergency aid package in US history, providing an obligatory jolt to our nation’s deteriorating economy. The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) puts money in the pockets of Americans who need it most in these tumultuous times.

Here are several key provisions that are especially advantageous to workers:

Payment to Families

Perhaps the most talked-about deliverable from the Act is the $250 billion set aside for payment to families. In sum, the IRS will send a one-time $1,200 rebate to individuals making up to $75,000 (based on adjusted gross income), or a $2,400 rebate for joint filers making up to $150,000. These payments will be reduced by 5 percent of the amount made in excess of $75,000 or $150,000, and there will be no payments for individuals making more than $99,000 and joint filers making more than $198,000. Additionally, parents would receive $500 for each child younger than 17. According to the Tax Policy Center, 90 percent of Americans would be entitled to full or partial payments under the plan.

The IRS should be distributing these rebate checks by mid-April, and you should talk to your tax advisor regarding how these payments apply.

Unemployment Benefits

The Act also sets aside an additional $250 billion for expanded unemployment benefits. Specifically, unemployed workers are eligible to receive an additional 13 weeks of unemployment benefits and receive a four-month enhancement of benefits for an additional $600 per week on top of what they receive from state benefits. Additionally, the Federal Government will pay unemployed workers for the first week individuals usually must wait for unemployment payments. These benefits are not only limited to employees though, as freelancers, furloughed employees, gig workers, independent contractors, and self-employed workers are also entitled to these benefits.

Healthcare Workers

Healthcare employees will be getting the help they’ve deserved for weeks, with $100 billion directed to hospitals and health care systems across the nations. Much of this funding will be used for personal and protective equipment for our invaluable health care workers.

Homeowners and Renters

Indeed, a $1,200 rebate is only a drop in the bucket for folks who must pay a mortgage or rent – which is especially steep in California. Fortunately, the bill protects individuals from foreclosures and evictions due to financial issues. Specifically, the plan allows anyone facing financial hardship from coronavirus to receive forbearance on federally backed mortgage loans for up to 60 days, with 30-day extension options. Additionally, landlords with federally backed mortgage loans could not evict tenants solely for failure to pay rent for a 120-day period.

Do You Need Legal Help?

Reach out to the attorneys of Haeggquist & Eck, LLP if you’re an employee who needs help. Our firm helps workers like you hold employers accountable for mistreatment and violations of employment law.

Contact us online or call (619) 342-8000 to get a free initial consultation that we reserve for prospective clients.

Can My Employer Ask About Disabilities or Medical Conditions Like Immunodeficiency During the COVID-19 Pandemic?

Although an employer typically may not ask you about your disability or medical condition, employers may argue that it is appropriate during the COVID-19 pandemic if they can establish that COVID-19 is a “direct threat” making you more susceptible to an adverse impact.

Currently, federal and state regulatory authorities have released useful guidance for employers and employees to understand the impact of COVID-19 upon existing laws involving disability discrimination. One such resource, which we encourage you to consider, is the U.S. Equal Employment Opportunity Commission’s (the “EEOC”) guidance issued in an online article entitled, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.”

The EEOC Guidance is directed to employers who are subject to the American with Disabilities Act (the “ADA”), which protects employees against disability discrimination. California’s Fair Employment and Housing Act (“FEHA”) is similar to the ADA in many respects, and California’s Department of Fair Employment and Housing (the “DFEH”) has also issued useful guidance.

As explained in the EEOC Guidance, generally during a pandemic that is akin to seasonal influenza or the 2009 H1N1 virus, it remains impermissible for your employer to ask you disability-related questions or to conduct a medical examination when you are asymptomatic. The EEOC has left open the question, however, whether COVID-19’s severity provides the ADA-covered employer with “sufficient objective information” to “reasonably conclude” that COVID-19 qualifies as a “direct threat” such that it may ask about other disabilities or medical conditions (non-COVID-19) that may make you more susceptible to adverse impact.

Employers May Try to Claim ‘Direct Threat

Indeed, COVID-19 being declared a “global pandemic” by the World Health Organization (“WHO”) means that some ADA-covered employers will undoubtedly seek to rely on the ADA’s “direct threat” exception that permits employers to make disability-related inquiries when the employee (whether due to the pandemic or another medical condition or disability) poses a “direct threat” such that there is a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” See 29 C.F.R. §1630.2(r). According to the CDC, people who have serious underlying medical conditions may be at higher risk for more severe complications from COVID-19. As stated in the EEOC Guidance, COVID-19 itself will likely be held to meet the “direct threat” standard. Therefore, if you have COVID-19 symptoms, employers have been conducting screenings for COVID-19 and have somewhat more leeway in how they interact with employees concerning COVID-19 work conditions (the topic of other blog posts herein).

So while your employer (during the COVID-19 pandemic) may assert that it is permitted to take your temperature and ask about COVID-19 symptoms, it is unclear whether your employer may also ask you about non-COVID-19 medical conditions or disabilities that place you (or others) at greater risk for harm.

Whether your non-COVID-19 disability presents a “direct threat” will depend on:

  • The duration of the risk
  • The nature and severity of the potential harm
  • The likelihood that the potential harm will occur
  • The imminence of the potential harm.

The determination of the “direct threat” must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. See 29 C.F.R. §1630.2(r). As noted in the EEOC Guidance, this means that the determination of a “direct threat” should not be based on “irrational fears” or “subjective perceptions.”

As stated in the EEOC Guidance, “[e]mployers should not assume that all disabilities increase the risk of influenza complications.” Examples offered in the EEOC Guidance of disabilities with a presumably lesser risk of complications are those impacting vision or mobility. Yet, careful thought illustrates how even more visually “hidden” disabilities should not be grounds for irrational fears of adverse risk. For example, it would be a subjective assumption that all persons with cancer may be immunocompromised in the same way. In practice, the immunocompromised status of a cancer patient often varies based on the type of cancer or the status of treatment.

Avoid Oversharing Sensitive Medical Information

Thus, while we believe it would be improper for employers to use COVID-19 as a pretext to inquire as to the disabilities or medical conditions of asymptomatic employees, employers will no doubt argue that there is a potential “gray area” with inquiries about disabilities or medical conditions that the WHO, the Centers for Disease Control (the “CDC”) or other health authorities have determined place you at heightened risk for severe complications from COVID-19.

Ultimately, even in light of the EEOC’s suggestion on this issue, the answer to this question is not “one size fits all” and will depend on individual facts and circumstances. We would caution against oversharing sensitive medical information, particularly when other options exist for employees, notably those in “non-essential” positions, to either work remotely or take leave (please see other blog posts on these topics).

Are You an Employee Concerned about an Employment Law Violation?

The attorneys of Haeggquist & Eck, LLP are relentless advocates for workers who endure mistreatment by their employers. Our attorneys have decades of combined experience helping people seek fair and just compensation when they’ve been taken advantage of at work.

Begin fighting for what you deserve by contacting Haeggquist & Eck, LLP online or calling (619) 342-8000 to arrange a free case evaluation.

Can My Employer Require Me To Use Leave During the COVID-19 Pandemic?

In California, Governor Newsom issued an Executive Stay at Home Order instructing all workers who do not work in Essential Critical Infrastructure jobs to stay home. While some employers are capable of offering work from home arrangements (“telework”), others are not – resulting in layoffs (both permanent and temporary) and leaves of absences.

With respect to leaves of absences, some employers are asking some employees to take a leave, while allowing others to continue working. This post addresses questions employees may have regarding: (1) whether your employer can require you to take leave; and (2) if so, what pay and benefits are you entitled to while on leave?

Can my employer make me take leave during the COVID-19 pandemic?

Generally, the answer is yes. In California, employers can instruct employees to take a leave of absence during the COVID-19 pandemic if the selection of employees for leave is based on a legitimate business concern and not based on a protected characteristic. For example, determinations for leaves of absence (and/or layoffs) cannot be based on race or country of origin due to unsupported fear.

It is also proper for employers to place some employees on a leave of absence and not others, again, if not done based on an unlawful discriminatory basis. However, an employer may place, e.g., production workers on a leave where telework is not possible, but require office workers, such as managers, to continue to work because telework is possible.

What if I work in an Essential Critical Infrastructure job and am exempt from the Stay at Home Order – can my employer still place me on a leave of absence? The answer is also yes, if not done discriminatorily. Is it also proper for my employer to place all “at risk” workers (e.g., those who are 65+, have a serious chronic medical condition, or have a compromised immune system) on leave, while allowing others to remain at work? This answer is not as clear, but likely yes. The objective evidence from the CDC and State and local health agencies is by having “at-risk” workers continue reporting to the worksite poses a “direct threat” to those workers. If a “direct threat” does exist, it is okay for employers to place these workers on leave if telework is not available without fear of running afoul of disability discrimination laws (e.g., the American with Disabilities Act and California’s Fair Employment and Housing Act). With respect to workers over the age of 65, please see our blog post here, but we believe for the same reasons, it would also be reasonable.

Am I entitled to pay and benefits while on leave during COVID-19?

If you are placed on a temporary leave because of a federal, state, or local isolation order related to COVID-19, such as Governor Newsom’s Executive Stay at Home Order, under the newly enacted Families First Coronavirus Response Act (the “FFCRA”), starting on April 1, 2020, you may be eligible to receive at least a portion of your compensation for about two weeks. If you are unable to telework and are placed on leave to care for your child because your child’s school or place of care is closed or the childcare provider is unavailable due to COVID-19, you could be eligible for partial pay after the first 10-day leave period. The FFCRA also provides paid sick leave for a few other reasons during the first 10-day period. For more information, visit our blog post discussing the FFCRA.

With respect to employer-sponsored group health insurance, you should review your employer’s policy relating to benefits for coverage. Some employer’s benefit plans may require employees to be “actively working” and working full-time hours (e.g., 30 hours) to be covered by the plan. If this is the case, it is possible your health insurance benefits could be canceled after a certain period of time. You also want to verify who is responsible for paying the insurance premium during this time (the employer or employee). For most employers, in the event of loss of coverage, employers may be required to offer COBRA continuation coverage to employees due to a COBRA qualifying event. A reduction in hours that causes a loss of coverage is a COBRA qualifying event.

Depending on the reason for leave, you may be eligible for Unemployment Insurance, State Disability Insurance, or benefits under California’s Paid Family Leave. See our blog post discussing the interplay between these leave and benefits laws.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

During the COVID-19 Pandemic, Can I Be Treated Differently Because I Am Over 65?

There is still little we know about COVID-19, but what we do know is that those who are 65 years of age or older are at a higher risk of developing more severe illnesses as a result of COVID-19.1 The Center for Disease Control (“CDC”) has confirmed that eight out of ten COVID-19 related deaths have consisted of people who were 65 or older.2 Additionally, on March 15, 2020, California Governor, Gavin Newsom, issued an Executive Order asking Californians over 65 to isolate themselves at home.3

Today, more than 20 percent of adults over 65 are either working or looking for work, compared to 10 percent in 1985.4 Thus, the recent state and federal warnings raise questions for nearly a quarter of those over 65. These questions include: Will my employer send me home because I am over 65? Will I lose my job because of my age and susceptibility to serious illness? Will potential employers ignore my resume because I’m higher risk? These questions boil down to one primary inquiry: Can my employer treat me differently because I am over 65?

In general, an employer cannot treat you differently simply because you are over 65 years old. The Federal Age Discrimination in Employment Act (“ADEA”) and the California Fair Employment and Housing Act (“FEHA”) prohibit discrimination against people who are 40 or older, unless the employer can establish the age limitation is based on a bona fide occupational qualification.5 These Federal and State laws forbid an employer from refusing to hire, fire, or discriminate against a person regarding the terms, conditions, or privileges of that person’s employment.

Recently, the Equal Employment Opportunity Commission (“EEOC”) provided guidance on this very issue.6 The EEOC advises reintegration of workers over 65 even though they are considered high risk. Even if an employer is legitimately concerned for the health and safety of its employee, it cannot exclude someone from the worksite solely because that employee is a certain age. Some of the specific issues addressed by the EEOC include:

  • Employers may not involuntarily exclude an individual from the workplace based on an individual being 65 years or over;
  • Employers may not postpone the start date or withdraw a job offer because the individual is 65 years or over;
  • Employers, however, are “free to provide flexibility to workers 65 and older,” even if this means younger workers ages 40-64 are being treated less favorably based on age in comparison.

In sum, absent any other considerations, an employer may not exclude an employee from the workplace because he or she is 65 or older, even if the employer is acting to protect the employee due to his or her higher risk of illness from COVID-19.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Interplay Between COVID-19 Paid Leave Act & Existing Leave Rights

On March 18, 2020, Congress passed the Families First Coronavirus Response Act (FFCRA), which will go into effect on April 1, 2020. It requires employers having 500 or less employees to pay sick and family leave to employees impacted by COVID-19 under certain circumstances. Our blog post here describes how employees may be entitled to paid sick and family leave under the FFCRA.

The FFCRA has an interesting interplay with existing leave laws, such as the Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), California Paid Family Leave (PFL), and the Healthy Workplaces, Healthy Families Act (”HWHFA”). Employees and employers alike should know how this interaction between new and old laws will play out in the workplace.

Eligible employees impacted by COVID-19 may also qualify for benefits under the American Disabilities Act (ADA), California’s Fair Employment and Housing Act (FEHA), and California School Activities Leave (SAL), as well as State Disability Insurance (SDI) or Unemployment Insurance (UI).

The COVID-19 Paid Leave Act Does Not Diminish Any Entitled Rights

The FFCRA specifically states it does not “in any way diminish the rights or benefits that an employee is entitled to under” any other “Federal, State, or local law” or any collective bargaining agreement or existing employer policy. In other words, in addition to paid leave under the FFCRA, an eligible employee retains his or her leave rights and benefits under the FMLA, CFRA, PFL, HWHFA, and other related laws. But, how exactly does this work, and what does each law provide?

While some laws merely provide the right to time off work and job protection upon return (e.g., FMLA, CFRA), other laws provide no such job protection, but provide for pay while on leave (e.g., HWHFA and PFL). The FFCRA provides a little of both to eligible employees.

Family & Medical Leave Act & the California Family Rights Act

The FMLA is a federal law that provides eligible employees with up to 12 weeks of unpaidjob-protected leave per year. The CFRA is California’s equivalent of the FMLA and provides similar protections. These laws are designed to allow employees to take unpaid leave for certain family and medical reasons. They also apply to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees.

Unpaid leave may be granted for the following reasons:

  • To take medical leave when the employee is unable to work because of a “serious health condition”;
  • To care for an immediate family member (i.e., spouse, child, or parent) with a “serious health condition”;
  • For the birth and care of a newborn child of an employee;
  • For placement with the employee of a child for adoption or foster care; or
  • For military caregiver leave

Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Upon return from an FMLA/CFRA leave, an employee must be restored to his or her original job or to an equivalent job.

Healthy Workplaces, Healthy Families Act

This law requires all California employers to provide eligible employees at least three days of paid sick leave. Note, however, that Los Angeles, San Diego, San Francisco, Santa Monica, Oakland, Berkeley, or Emeryville also have local ordinances requiring as much as six or nine days of sick leave per year.

Families First Coronavirus Response Act

This law provides both job protection and paid time off for eligible employees because of COVID-19. There are two relevant sections in this respect: (1) paid family leave; and (2) paid sick leave.

With respect to the paid family leave section, the law is simply a temporary expansion of the already existing FMLA (described above). Employees are eligible if they worked for the employer for at least 30 days prior to the designated leave.

For employees unable to telework, they may take up to 12 weeks of job-protected leave, but only for a single purpose: to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency.

The first 10-day period of leave is unpaid. After that, the employer must pay full-time employees two-thirds of the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. For part-time employees or employees working irregular schedules, they are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking leave.

With respect to the paid sick leave section, it applies to any employee, regardless of his or her length of employment. An employee is entitled to 10 days of paid sick leave pay for six reasons, such as if the employment is subject to a federal, state, or local quarantine or isolation order related to COVID-19. See our blog post here for all six reasons and the amount of pay to which employees are entitled.

California Paid Fa Leave

PFL allows eligible employees to receive partial compensation for lost wages for up to six weeks in a 12-month period if they take time off from work to provide care for a seriously ill or injured family member (including grandparent, grandchild, sibling, or parent-in-law) or for bonding with a minor child within one year of the birth or placement of the child in connection with foster care or adoption. This includes leave to care for a family member who becomes seriously ill from COVID-19.

Despite the name, PFL is not a “leave” program; it does not provide employees with any entitlement to leave and it does not protect an employee’s job while he or she is out on leave. An employee may not be eligible for PFL benefits if he or she is receiving State Disability Insurance, Unemployment Compensation Insurance, or Workers’ Compensation benefits.

All claims for PFL benefits must be submitted directly to the Employment Development Department of the State of California. The EDD ultimately determines whether you receive FTDI benefits based on the serious health condition of certain family members that require your care. Benefit amounts are approximately 60-70 percent of wages (depending on income) and range from $50-$1,300 a week.

Interplay Between the Paid Sick & Leave Laws

The way COVID-19 impacts your employment will determine the leave and benefits to which you may be entitled.

Example 1 (School Closures): Under the FFCRA, if you need to stay home to care for your child because her school closed due to COVID-19, 10-days after you are required to stay home, you may be entitled to two-thirds of your pay for up to 12 weeks (if you are unable to telework). In this scenario, you may also be able to receive full pay for the first 10-days under the paid sick leave section of the FFCRA. After the 12 weeks are exhausted, if a stay at home or isolation order is still in effect requiring school closure and, thus, precluding you from reporting to the workplace, absent an employer policy stating otherwise, you may not be entitled to additional pay or protected leave, unless you or a family member falls ill to COVID-19 or has some other medical condition entitling you to job protected leave under the FMLA or CFRA.

Example 2 (Isolation Orders): If you are subject to a federal, state, or local quarantine or isolation order related to COVID-19, you may be eligible for up to two weeks of paid leave under the FFCRA if you are unable to telework, in addition to any unused paid sick leave you already receive through your company’s poilicies or the HWHFA. In California, Governor Newsom has issued an Isolation Order applying to all non-critical infrastructure sectors. After the two weeks of paid leave, you may not be entitled to additional pay due to an isolation order, unless you are also entitled to paid leave because you have to stay home to care for a child whose school has closed.

Example 3 (Sick from COVID-19): If you are experiencing COVID-19 symptoms and seeking medical diagnosis or advise from a health care provider to self-quarantine due to COVID-19 concerns, you may be eligible for up to two weeks of partial pay under the COVID-19 Act. After that, you are entitled to at least three days of paid sick leave under the HWHFA. If you are still suffering from a “serious health condition” because of COVID-19, you may be entitled to up to 12 weeks of job protected leave under the FMLA and CFRA if you are an eligible employee.

Example 4 (Caring for family member sick from COVID-19): If you are caring for an individual subject to a quarantine or isolation order or as advised by a healthcare provider, you may be eligible for up to two weeks of partial pay under the COVID-19 Act. If you are caring for an immediate family member with a serious health condition because of COVID-19, you may be entitled to up to 12 weeks of job protected leave under the FMLA and CFRA if you are an eligible employee.

Think You Need an Employment Lawyer’s Help?

If you believe your employer isn’t following the law, reach out to an employment law attorney to help you hold them accountable. Although there is a complicated interplay between California’s existing employment regulations and new ones in the FFCRA, your employer is responsible for upholding your rights at work.

If You feel you are being taken advantage of, reach out to Haeggquist & Eck, LLP to get the legal representation that can fight for your right to seek fair and just compensation.

Contact us online or call (619) 342-8000 to arrange a free initial consultation with one of our attorneys.

What Is Expected of Me While I Am Teleworking?

On March 19, 2020, California Governor Gavin Newsom issued a temporary Stay at Home Order to protect the health and well-being of all Californians in order to slow the spread of COVID-19.

Relatedly, on March 18, 2020, Congress passed the Families First Coronavirus Response Act (“Act”), which goes into effect on April 1, 2020. Among other things, the Act provides up to 12-weeks of paid leave to eligible employees impacted by COVID-19 who are unable to telework. As such, many employers are offering telework arrangements to workers. Below are issues to consider regarding teleworking.

What is Telework?

Generally, telework means working one or more days away from the main office, in a space at the employee’s residence.

When and With Whom Is Telework Appropriate?

During the interim period of Governor Newsom’s Stay at Home Order, Telework arrangements are proper with all employees not working in critical infrastructure sectors, who are willing and able to work from home. Determinations cannot be based on race or country of origin, and must not otherwise be administered in a discriminatory way.

Telework and Wage & Hour Laws

All federal and state wage and hour laws still apply to telework arrangements. For example, non-exempt employees are still entitled to receive legally compliant meal and rest breaks. Employers must pay an extra hour of pay each day in which they fail to provide a meal or rest period. Likewise, employees must be paid for all hours worked, including for overtime hours. Accurate pay and time records must also be maintained.

Equipment, Supplies, and Related Business Expenses

Employers are required to reimburse employees for expenses “necessarily incurred” in their employment. To the extent equipment, supplies, materials, and related items are necessary for you to fulfill your telework job, your employer may need to provide you with such items or reimburse you for purchasing them. Your employer may have a reimbursement policy requiring advance notice and approval before incurring such business expenses.

Telework and Workplace Safety

Like the office or normal worksite, the telework location should be a healthy and safe environment. As such, employers may have policies requiring the telework location to be free from potential obstructions and hazards, such as clutter, exposed wiring, slippery surfaces, and other potential hazards.

Telework and Workers Compensation

California businesses with one or more employees must carry workers compensation insurance. There is no exception for this requirement for employees who telework. An employer may be liable for “any injury sustained by his or her employees arising out of and in the course of employment.” Liability for an injury sustained by an employee while working at a telework location is no different than if the employee had sustained the injury while working in the office or at the worksite.

Confidentiality, Privacy, Security, and Protection

Many employers will require employees to comply with their standard policies and procedures regarding non-disclosure, confidentiality, and security. Be sure to check with your supervisor and/or human resources department to ensure you are complying with the employer’s policies in this regard.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

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