Archives for May 18, 2020

On May 6, 2020, Governor Newsom signed Executive Order N-62-20, creating a presumption that any COVID-19 diagnosis qualifies an employee for workers’ compensation benefits.  The presumption applies if all the following requirements are satisfied:

1. An employee tested positive for COVID-19 within 14 days after a day of working/performing services at the employer’s place of employment;

2. The workday mentioned above was on or after March 19, 2020;

3. The place of employment mentioned above is not the employee’s home or residence; and

4. The COVID-19 diagnosis was done by a licensed physician and the diagnosis is confirmed by further testing within 30 days after the original diagnosis.

Under the order, workers are entitled to full benefits including “full hospital, surgical, medical treatment, disability indemnity, and death benefits.” An employee must use all available paid sick leave before he or she can collect temporary disability benefits. If an employee was diagnosed with COVID-19 on or after May 6, 2020, the employee must be certified for temporary disability within 15 days of the diagnosis, and every 15 days thereafter.  If an employee was diagnosed before May 6, 2020, the employee must obtain certification by May 21, 2020, documenting the time period which the employee was unable to work, and must be recertified for temporary disability every 15 days thereafter.  The presumption applies to all California workers’ compensation insurance carriers and will stay in place until July 5, 2020.

Although the presumption can be rebutted by “other evidence” within 30 days of the claim, this is a powerful incentive for employees to return to work.  Governor Newsom stated, “we are removing a burden for workers on the front lines, who risk their health and safety to deliver critical services to our fellow Californians, so that they can access benefits, and be able to focus on their recovery.”

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

If your employer has arranged for teleworking to facilitate social distancing during the COVID-19 pandemic, the employer must still meet its obligations to provide a lawful working environment for you and other employees. For example, even when you are teleworking, your employer must still provide a working environment where you are not subjected to unlawful discrimination, harassment, or retaliation.

Further, when you work from home, your employer must also implement any applicable disability accommodations you may need. For example, if your employer had provided you adaptive equipment to facilitate working with a disability, you are entitled to the same or a comparable accommodation when you work from home.

In addition to anti-discrimination and disability laws, your employer must also comply with any labor laws applicable to your position. You remain entitled to overtime pay (if overtime laws apply to your job) for any overtime work you perform while working from home. You may be entitled to meal and rest breaks free from any work responsibilities, and you should be paid for all time worked. Your employer should set out clear goals for your teleworking arrangement, so you always know what is expected of you in terms of your working hours. Even if you are an “exempt” employee for whom many of the laws governing working hours do not apply, your new teleworking arrangement cannot incidentally change your job responsibilities so that you are required to perform non-exempt job functions without additional compensation.

From a practical standpoint, if your company sends you home and you need to augment your home office with equipment and supplies that you would normally have at work, you may be entitled to reimbursement for any out-of-pocket expenses you incur while you are teleworking. Many employers may offer to provide essential equipment, but, if they do not, they cannot pass the cost of doing business onto their employees.

Every situation is different, whether or not an employer has met its legal obligations to provide a lawful working environment for a teleworking employee will depend on the details. If you think your employer has not met its obligations to provide you an appropriate working environment for teleworking during the COVID-19 pandemic, you should contact an experienced labor and employment attorney who can assess the facts of your situation.

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

Pregnancy is one of the most exciting, and stressful, times in a person’s life, with your health and the health of your baby likely topping the list of your daily concerns. Throw in a global pandemic, and what is typically stressful becomes downright scary.

The Centers for Disease Control and Prevention (“CDC”) says “there are currently no data showing that COVID-19 affects pregnant people differently than others” and that “[m]other-to-child transmission of COVID-19 during pregnancy is unlikely.” The CDC, however, also recognizes much is still unknown about COVID-19, pregnant people generally have “a higher risk of severe illness when infected with viruses that are similar to COVID-19,” and “after birth, a newborn can be infected after being in close contact with an infected person, including the baby’s mother or other caregivers.” As such, the CDC lists pregnant people as one of the categories of “People Who Need Extra Precautions” to reduce their risk of contracting COVID-19.

So, what can you do to protect yourself and your baby if you are considered an essential worker and have to report to work? Luckily, if your employer has at least 5 employees, California’s Pregnancy Disability Leave Law (“PDLL”) provides you with several options.

You Are Entitled To Reasonable Accommodations Advised by Your Health Care Provider

The PDLL entitles you to reasonable accommodations for pregnancy, childbirth, and related medical conditions. Reasonable accommodations can include things like modifying work practices and policies, such as work-from-home policies, and transfers to less hazardous or strenuous positions or job duties if your employer can do so without it causing an undue burden on its operations. Arguably, many jobs once considered safe are now potentially hazardous due to the risks of exposure to COVID-19. As such, you may need to work from home, granted you can perform your essential job functions remotely, or you may need to temporarily transfer to a less hazardous position to avoid the risk.

But there is one catch – the accommodation must be requested with the advice of a health care provider. Therefore, make sure you discuss your specific work circumstances with your doctor –describe your work space, the number of people in that space, the health and safety precautions (or lack thereof) being taken by your employer, whether you regularly come in contact with third parties such as customers or medical patients, and whether any other employees have been diagnosed with COVID-19 – so that your doctor can make a fully informed decision about what accommodation is medically advisable given your medical and pregnancy history.

Then, inform your employer of the accommodation you are requesting, including providing a written doctor’s note if requested. Whether you are entitled to any particular accommodation will depend upon the circumstances of your pregnancy-related disability and your workplace.

You Can Take Protected Leave if, in the Opinion of Your Health Care Provider, You Are Disabled by Pregnancy

The PDLL also provides you with the right to take up to four months of protected leave if you are disabled by pregnancy, meaning, in the opinion of your doctor, you either cannot perform the essential functions of your job because of your pregnancy or because doing so would cause undue risk to yourself or your pregnancy’s successful completion. A non-exhaustive, illustrative-only list of conditions that may qualify as disabling include gestational diabetes, pregnancy-induced hypertension, and preeclampsia.

Given that so much remains unknown about COVID-19’s effects on pregnancy, and that pregnant people generally have a higher risk of severe illness when infected with similar viruses, you should discuss your particular work circumstances with your doctor to determine whether a leave of absence is medically advisable. This may be the case where, for example, you are unable to perform your essential job functions from home or where your employer is unable to temporarily transfer you to a less hazardous position. But your employer cannot force you to take leave. So, if you request an accommodation, for example, to work from home based on the advice of your doctor and you are able to perform the essential functions of your job from home, your employer cannot force you to take leave instead of providing the accommodation.

Again, whether you are entitled to leave will depend upon the circumstances of your pregnancy-related disability and your workplace.

Your Rights While Being Accommodated or While on Leave

If you take leave or are temporarily transferred to a less hazardous position, your employer must reinstate you to your original job, or a comparable job with the same duties, skills, pay, and benefits, once you are no longer disabled by pregnancy. Further, while you are on protected leave, you will continue to be covered by any group health coverage your employer already provides. Though your employer is not required to pay you while you are out on leave, you have the option of using any accrued vacation or sick time. You may also be eligible for State Disability Insurance, which would provide you with 60 or 70% of your normal weekly wages.

Finally, it is important to know that it is illegal for your employer to fire, demote, harass, or otherwise discriminate against you because of your pregnancy, or to retaliate against you for requesting accommodations or leave, regardless of whether the request was granted. You can obtain more information on your pregnancy disability rights, including reasonable accommodations and protected leave, from California’s Department of Fair Employment and Housing.

What To Do if You Believe Your Rights are Being Violated

If you are pregnant and believe your employer is violating your rights, you may be able to hold them legally accountable. The employment law attorneys of Haeggquist & Eck, LLP will work with you to learn about your situation and seek fair and just compensation if your employer is breaking the law. Contact us online or call (619) 342-8000 to learn more about how we may be able to support your claim.