Archives for April 2020

Can I Lose My Job If I Have COVID-19?

As part of Haeggquist & Eck, LLP’s ongoing efforts to guide employees through this turbulent time, we know this is one of the biggest questions at the forefront of everybody’s mind. With some caveats, the answer is no, you cannot lose your job because you contract COVID-19.

Preexisting Laws May Offer Some Protection

State and federal law both provide protection for employees who need time off because of a serious health condition suffered by a worker or a worker’s immediate family member. At the federal level, the Family and Medical Leave Act (“FMLA”) provides up to 12 weeks of protected leave to deal with a serious health condition. In California, the California Family Rights Act (CFRA) provides similar protection. When an employee takes leave protected by the FMLA and the CFRA, an employer must reinstate the employee after the leave ends.

Employees, however, must meet certain eligibility requirements, and both laws only apply to employers with 50 or more employees. Moreover, under the current framework of employment law, not every case of the common cold or seasonal flu has qualified as a sufficiently “serious” health condition triggering the job protections of the FMLA and CFRA. Although COVID-19 can be deadly for some patients, many patients experience only mild-to-moderate symptoms –not appreciably different from a cold –that might not be sufficiently serious to trigger FMLA and CFRA job protections.

Common sense suggests that – given the virulence of the COVID-19 pandemic and the universal guidance to stay home – even when you have no symptoms, a case of COVID-19 should count as a sufficiently serious health condition.

Another level of protection comes from California’s Fair Employment and Housing Act (FEHA). Under FEHA, employers must make reasonable accommodations to “disabled” employees. The legal definition of disability is broad, and an appropriate accommodation could include a short, job-protected leave for the purpose of convalescing from COVID-19 and protecting the public by sheltering in place. Notwithstanding the preexisting legal framework of state and federal employment law, many workers will ultimately benefit from the emergency legislation enacted by the United States Congress in response to the global pandemic.

Emergency Paid Sick Leave under the FFCRA

The Families First Coronavirus Response Act (FFCRA), which went into effect on April 1, 2020, includes the Emergency Paid Sick Leave Act (EPSLA), which guarantees paid sick leave for employees in a variety of situations related to COVID-19. Haeggquist & Eck, LLP has a separate blog entry on the details of paid sick leave under the FFCRA, which you should read if you think you might be entitled to paid sick leave, or if you simply want to learn more about the new law. For all intents and purposes, the FFCRA requires any employer with fewer than 500 employees to provide up to 80 hours of paid sick leave to COVID-19 patients.

In light of the current shelter-in-place orders in effect throughout the country, the FFCRA also applies to employees who are unable to telework. Therefore, you can take paid sick leave, even if you are already working from home, but unable to work, because you are sick with COVID-19.

Q: Can I Loose My Job While on Sick Leave?

A: Perhaps most importantly, the paid sick leave law also includes a non-discrimination and anti-retaliation provision. Employers may not terminate or discriminate against employees who take paid sick leave under the FFCRA because of COVID-19.

Although the law does not protect you purely because you contract COVID-19, it does protect workers who take leave to convalesce from the disease. This is a positive development, because it helps people to adhere to the current government recommendations to self-quarantine at home in order to prevent the community spread of COVID-19. Thus, if you find yourself diagnosed with, or suffering symptoms of, COVID-19, the best thing you can do to protect yourself and your job is to take the sick leave protected by the Act. Doing so should trigger the Act’s job-protection provisions.

The major exceptions to the EPSLA are: (1) it does not apply to employers who employ more than 500 employees; and (2) healthcare providers and emergency responders may be excluded from the Act. Employees potentially covered by those exceptions may need to fall back on the preexisting protections of laws like the FMLA and the CFRA.

The Families First Coronavirus Response Act is only one piece of federal legislation designed to protect businesses and workers as the state of employment in the United States becomes more uncertain by the day. The recently enacted laws complement preexisting laws. Read our blog post on the subject for more detail about the interplay between preexisting labor and employment law and the new federal laws enacted in response to the pandemic.

What Should I Do If My Employer Does Not Protect My Job?

The particular facts and circumstances of every case will differ, particularly because this pandemic is unlike anything our legal system has had to contend with. If you have any doubts about whether your employer should have protected your job, the employment law attorneys of Haeggquist & Eck, LLP can analyze your specific situation, and seek fair and just compensation for you if an employer breaks the law.

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

Can My Employer Treat Me Differently Because I’m Asian or from Another Country During the COVID-19 Pandemic?

As a result of the COVID-19 pandemic, Asian-Americans have found themselves subjects of xenophobia and racism. In addition to a myriad of anecdotal instances of xenophobia, San Francisco State University discovered a 50 percent rise in COVID-19 anti-Asian discrimination from Feb. 9 to March 7, 2020.

Last month, EEOC Chair, Janet Dhillon, issued a statement urging employers to be mindful of discrimination, harassment, and retaliation of Asian employees. In other words, employers cannot treat their employees differently because they are Asian or of Asian descent, and should ensure their Asian employees are not mistreated by others at work. This is, however, simply a restatement of Federal and State law that prohibit discrimination based on race and/or national origin.

However, if the CDC or other state or local public health officials recommend a quarantine period when returning from specified locations, an employer may ask whether its employees are returning from these specified locations. The CDC recently advised those who have travelled internationally in the last 14 days to stay at home for 14 days, and specifically advises, “Do not go to work.” Thus, your employer could ask if you had travelled to China, or any other country in Asia, in the last 14 days, and if you did travel, may ask you to go home. This policy, however, applies to all employees, and is not a blank check to discriminate against Asian employees.

Much like COVID-19, racism is a virus that spreads rapidly. No matter what we look like, we are all in this fight together and we all have a common goal: to beat this virus and protect millions of lives.

Are You Being Mistreated at Work?

There is no excuse for violating your federally protected right to be free from experiencing discrimination at work. If you are being mistreated on the basis of your race, skin color, national origin, or because of another protected characteristic, you can hold your employer legally accountable.

For more information or to schedule a complimentary consultation with an attorney who can help, contact Haeggquist & Eck, LLP online or call us at (619) 342-8000.

Strikes Ratchet Up During COVID-19 – Essential Workers Are ‘Doing It For Themselves,’ As the Song Goes

Our nation is witnessing what may be the start of a tidal wave of workers going on strike, particularly in “essential” businesses such as the grocery and delivery industries. Since at least March 27, 2020, news headlines have exploded with reports of actual or threatened strikes (or “sick outs”) by workers at Amazon, Whole Foods (owned by Amazon), and Instacart. These workers are demanding a host of protections and benefits, including hazard pay, increased safety protections, and other work condition improvements.

Who can blame these workers for striking? While most Americans stay home to “shelter in place”, these workers are suffering through unbelievably long hours, often spent in confined areas, and with little employer-provided health protections or sanitization efforts to guard against the COVID-19 virus. These workers are seeing fellow employees becoming infected with COVID-19, yet they are expected to continue to place themselves in harm’s way, with no appreciation of the risk they are taking to their lives. They are truly in the “trenches” of the war to help keep Americans fed.

Fortunately, the workers are not without some governmental support. On March 25, 2020, fifteen states Attorneys General wrote to Amazon and Whole Foods to ask that these businesses pay heed to the guidance of the Centers for Disease Control, and to adopt standards akin to those in the Families First Coronavirus Response Act.

Similarly, during California Governor Newsom’s March 31, 2020 public update on the COVID-19 pandemic, he relayed a conversation with John Grant, the head of the United Food & Commercial Workers (“UFCW”) Local 770 in the Los Angeles area (the “UFCW Local 770”), about the plight of grocery workers. As summarized by Newsom, essential workers in the grocery stores are also on the “front line” just like workers in the medical field.

UFCW Local 770 has started a petition for Newsom to enforce protections for these essential workers. The petition asks the State of California to “designate essential retail workers as emergency frontline personnel” and to provide increased sanitary protections (including personal protection equipment (PPE), among other benefits.

Ultimately, it is in everyone’s best interests to protect all workers, and especially those in “essential” jobs at this critical time. As one news report wisely questioned: “What will happen if a combination of labor unrest and risk of infection shuts down the same delivery platforms and retail avenues that people are relying on to get through the crisis as they self-quarantine?” As the saying goes, we are all in this together. Protecting employee rights protects everyone.

Sadly, one striking Amazon worker was reportedly fired for participating in a New York strike effort. The President of the Retail, Wholesale and Department Store Union is cited as called the firing “unacceptable”. New York’s Attorney General and the Mayor of the City of New York are reportedly calling for investigations into the alleged firing. We trust that employers will think twice before further harming employees for seeking improved work conditions.

We encourage both employers and employees to consider all current guidance offered by federal and state regulatory authorities concerning workplace safety at all times, but especially during COVID-19. Recent informative guidance may be readily located on the CDC’s websiteOsha.gov, and California’s website. Finally, while employees will need to consider their particular employment situation (i.e., are they a union member; are they subject to a collective bargaining agreement; etc.), the National Labor Relations Board (the “NLRB”) also has useful online guidance concerning strike rights in various situations. Right to strike laws can be complex and vary based on several factors. We encourage employees to consult with counsel before undertaking any strike or “sick out.”

At Haeggquiest & Eck, LLP, also welcome any employees – particularly those in jobs deemed “essential” – who have concerns about their working conditions to contact us online or by calling (619) 342-8000 for assistance.

Haeggquist & Eck, LLP Featured in San Diego Super Lawyers Magazine

Employee and consumer rights advocates Alreen Haeggquist and Amber Eck were featured in a cover story of a recent San Diego issue of Super Lawyers Magazine, delving into each attorney’s backstory and how the firm took on – and beat – Trump University and other major defendants.

The extensive piece covers Haeggquist’s roots in Pakistan and Eck’s in Montana, and how both attorneys’ lives would develop to eventually intertwine to form Haeggquist & Eck, LLP – San Diego’s most notable employee and consumer rights law firm, and arguably among the most notable in the country.

That’s because the firm has racked up an impressive string of high-profile cases against major players including the Salk Institute, Fairmont Grand, and President Donald Trump and Trump University, which is explored in detail throughout the Super Lawyers Magazine Piece.

For more information about Haeggquist & Eck, LLP’s victories in consumer rights and employment law cases, check out their cover article in Super Lawyers Magazine or reach out to the firm online!

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