Archives for August 2020

Does FMLA Leave Have To Be Used All At Once?

The short answer is no. The Family Medical Leave Act is federal legislation that protects an employee’s right to take 12 weeks of unpaid leave under qualifying circumstances. During leave, the employee’s job is protected – meaning the employee can’t be terminated while on leave. Upon the employee’s return, the employer must provide the same position or a similar one with equivalent or better pay and benefits than before the leave was taken.

Qualifying circumstances include the following:

  • Preparation for the birth of a child and to bond with it as a newborn;
  • Adoption of a child or placement in foster care to permit a bonding period;
  • When an immediate family member (such as a child, spouse, or parent) with a serious health condition needs care from the employee;
  • When the employee is themselves afflicted by a serious health condition that prevents them from working; and
  • Qualifying needs for an employee’s immediate relative who is on covered active duty as a member of the military.

Depending upon your reason to take leave, you may be wondering if you must take your 12 weeks of FMLA leave all at once. In short, the answer is no – but there are certain considerations you make take into account before asking for an intermittent or reduced leave schedule.

What Workers Should Know about Intermittent & Reduced Leave Schedules

While you cannot extend the total amount of leave time you get, under certain circumstances you may be able to pace it out in a way that makes it last longer over the 12-month period where your qualifying reason remains valid.

In other words, it’s possible to work out a system where you continue your work in between time off for your FMLA-qualified reason. You can accomplish this by arranging a modified or reduced schedule with your employer that uses your 12 weeks of FMLA leave to adjust your otherwise employer-required daily or weekly schedule.

Such can be the case if you are caring for your own serious medical condition or that of a relative, especially when regular visits to the doctor or hospital are anticipated. Employees who want to take FMLA leave to bond with their newly born or adopted children can also be taken intermittently, but an employer must approve the schedule proposed by the employee.

Despite the flexibility that may be afforded in how FMLA leave can be used, an alternative arrangement of leave time cannot extend beyond 12 months after it began.

Contact Haeggquist & Eck, LLP for Legal Help

At Haeggquist & Eck, LLP, it’s our goal to help employees hold their employers accountable for violating their employment rights. We are fearless advocates for our clients who were taken advantage of or abused by their employers. It’s our job to help them fight for justice through fair and just compensation while holding their employers accountable for violating their rights.

If you think your FMLA rights were violated, reach out to Haeggquist & Eck, LLP today to schedule a case evaluation. After learning more about your situation, we’ll be able to assess whether or not you may have a strong case. We’ll also inform you of potential options you have for moving forward with your claim, and how our firm can help you fight for what you deserve.

Take advantage of our free case evaluation by scheduling yours today. Call us at (619) 342-8000 or fill out our online contact form to get in touch with someone who can help.

Are You Getting Equal Pay? Here’s What To Do If You Have Doubts.

Women and people of color have been perpetually fighting for equal rights in the workforce. While great strides have been made in the last several decades, there are still many reasons why the fight for equality at work is far from over.

Unfortunately, one of those reasons is equal pay. Despite the federal Equal Pay Act of 1963 and California’s own legislation that bans wage discrimination on the basis of sex or race, women and people of color across the state and nationwide aren’t being paid the same as their white male coworkers when they work in substantially similar roles.

If you’ve ever wondered if you’re being paid an equal wage, there are a few ways you can find out. Read about a few of these ways below to determine if you might be underpaid.

Do Some Research Online

If you’re wondering if you’re being paid a fair wage, there are a few places online where you can easily compare what you make to self-reported data anonymously posted by others. Sites like Glassdoor and Payscale can help you determine how your wage or salary stacks against those reported by people with similar roles at other companies across the United States. You may even be able to find data from current or former coworkers at your company to get a more focused view of how well you’re being paid.

When you’re comparing rates, however, take into account unseen or unreported factors like how long someone may have been with the company, what kind of prior experience did they have before getting hired, and – if you’re looking at data from another state – how the cost of living can factor into disparities. That said, wide disparities in pay that can’t be easily explained are worth exploring.

Leverage Your Professional Network

Chances are you’re connected by one or two degrees to people who hold your title at a different company or have held it in the past. Asking these professionals what they would consider to be reasonable pay and benefits for the job is one way of doing a more direct and personal type of market research.

Talk With Your Coworkers

Perhaps the most direct way of figuring out whether or not you’re being paid a fair wage is to directly ask your coworkers what they make. This may be the hardest option to pursue because you are probably only likely to get an answer out of coworkers who feel comfortable sharing what they make.

Keep in mind that discussing your wages isn’t something your employer can punish you for doing, but you shouldn’t pursue an answer from a coworker who is unwilling to share their information.

What If I Find Out I’m Being Underpaid?

If you find out you are being paid much differently than coworkers who share substantially similar roles and experience to your own, you should consider reaching out to an employment law attorney for guidance on what to do next.

At Haeggquist & Eck, LLP, we can help you navigate the issues you may need to address in a meeting with your supervisor to discuss your pay at the company compared to your coworkers’. If it appears likely that your pay is artificially lower than your coworkers’ as a result of discrimination, and your company is unwilling to make necessary adjustments, our attorneys can advise you of next-step options for taking legal action.

By working with an employment lawyer from Haeggquist & Eck, LLP, you can recover the fair and just compensation you deserve from an employer who violated your right to equal pay.

For more information about how we can help, schedule a free consultation by calling (619) 342-8000 or by filling out our online contact form.

Do I Have Employee Rights If Housemate Is High-Risk For COVID-19 Complications?

You care about the people you live with. Whether it is a member of your family, a friend turned roommate, or your partner, you have likely all substantially changed how you live your lives as a result of the COVID-19 pandemic. Maybe workplaces have pivoted to a remote “work from home” structure, meaning you might be spending more time with your housemates than ever before. Other workplaces, including essential businesses, have been permitted to operate under modified conditions.

While many have returned to work, the risk of transmitting COVID-19 still exists, and in some areas, it may be more possible than ever. It is conceivable that one could catch the virus at their workplace and unintentionally bring the illness home, where mask use and distancing are not typically practiced among housemates. This would be unfortunate enough, but there are situations where your roommate or loved one has an especially high risk for developing severe illness due to COVID-19. These preexisting conditions likely shape the level of risk they are willing to individually take. However, if you do not share these conditions, you may still be expected to work.

You may be wondering, then, if you have any employee rights if someone you live with is at particularly high risk for developing severe illnesses as a result of COVID-19. Below, we cover what California and federal guidance requires in these situations.

Am I Entitled To Any Accommodations If My Roommate Could Be Severely Injured by COVID-19?

In short, the answer is probably not. While California and federal laws require employers to provide reasonable accommodations to pregnant employees and employees with disabilities, including when pregnancy or disability puts them at greater risk for severe illness from COVID-19, these accommodation laws do not definitively extend to an employee’s family member or housemate that is high-risk. This is especially true if the only factor contributing to that person’s high-risk status is their age. Age has statistically shown to be a significant factor in the severity of illnesses experienced following COVID-19 transmission. Because age is not considered a disability, employers are not strictly required to reasonably accommodate employees whose only concern stems from the age of housemate.

What this means is that an employee who does not independently need an accommodation for their own disability or pregnancy generally will not be entitled to an accommodation. This can result in requests to telework to avoid potential exposure to COVID-19 will be denied if the only reason for the request is to protect a high-risk hosuemate. Despite this, employers may still choose to provide such accommodations to non-disabled employees; however, in doing so, the employer must be sure to provide such accommodations consistently. An employer can intentionally or inadvertently violate the law if they play “favorites” in granting telework or other accommodations on these terms. If an accommodation is extended to one employee with high-risk housemates, that same accommodation must be granted to other employees with similar situations.

Eligible employees are also entitled to unpaid, job-protected leave to care for a spouse, parent, or dependent child that actually has (and is not just at risk for) a serious health condition, including COVID-19. If a high risk housemate tests positive for COVID-19, for example, you have the right to take protected (though unpaid) leave to care for them while they are ill. This can become especially important to responsibly behaving during the pandemic: If you live with them and they test positive, you are also likely to be exposed and should avoid returning to the workplace until you have been cleared through testing.

How Associational Discrimination Could Influence Cases Involving High-Risk Housemates

There is one potential workaround in California that could benefit those seeking accommodations to protect their high-risk housemates. This caveat concerns the lesser-known claim for “associational discrimination.” California and federal laws prohibit discrimination and harassment based not only an employee’s protected status – including disability, age, national origin, sex, or pregnancy status – but also on an employee’s association with an individual within a protected class.

For example, it is unlawful to refuse to hire, segregate, send home, demote, or terminate employees because of their association (including marriage or cohabitation) with someone based on their disability, age, national origin, pregnancy status, or sex. The Equal Opportunity Employment Commission (see FAQ D.13) made clear that federal associational discrimination law does not require an employer to accommodate an employee without a disability based on the disability-related needs of their family member or other person with whom they are associated.

California law, however, is less clear. In fact, while California has not specifically ruled on the issue, it has recognized that California’s associational discrimination law may reasonably be interpreted to require accommodation based on the employee’s association with a disabled person. In other words, if you have a housemate that is disabled (and thus high risk for developing a serious illness as a result of COVID-19), it may be considered associational discrimination if an employer refuses to accommodate or otherwise retaliate against you for requesting those accommodations.

If you believe you are being treated differently because of your association with a person who is high-risk for COVID-19, or if you have been denied accommodations for your high-risk family member or housemate, you may be able to hold your employer 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.

Three Haeggquist & Eck Attorneys Named To Prestigious “Best Lawyers of America” List

Three attorneys at San Diego employment and consumer rights firm Haeggquist & Eck have been selected for inclusion in The Best Lawyers in America© 2021.

  • Partner Alreen Heggquist was selected by her peers for inclusion in the Best Lawyers in America© 2021 in the field of Consumer Protection Law;
  • Partner Amber Eck was included in the Best Lawyers in America© 2021 for her work in Securities Litigation; and
  • Associate Ian Pike received a 2021 Best Lawyers: Ones To Watch recognition for Labor and Employment Law – Employee.

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 108,000 industry leading lawyers are eligible to vote (from around the world), and we have received over 13 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2021 Edition of The Best Lawyers in America©, 9.4 million votes were analyzed, which resulted in more than 67,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed.

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

What Does My Employer Have To Do If an Employee Tests Positive For COVID-19?

Employers should be relying on the latest public health recommendations from the Centers for Disease Control and Prevention (“CDC”), as well as state and local public health authorities. According to the CDC’s guidance, if an employee tests positive for COVID-19, your employer should be taking the following actions.

Send Infected Employee Home

The infected employee should be immediately separated from other employees and sent home (or instructed to remain home). Such employees should not return to work until released by their medical provider and they should self-isolate as instructed by the CDC. The U.S. Equal Employment Opportunity Commission (“EEOC”) has confirmed infected employees, including those experiencing symptoms, may be sent home.

Identify & Send Home Employees Who Were in Close Proximity with the Infected Employee

The employer should identify and send home all individuals who worked in close proximity (within six feet) of the infected employee for a prolonged period (10 minutes or longer) during the 48 hours before the onset of the symptoms. The CDC provides that employees who worked closely with the infected worker should be instructed to proceed based on the CDC’s guidance. This includes staying home until 14 days after last exposure, maintaining social distance from others, and self-monitoring for symptoms (i.e., fever, cough, or shortness of breath). If you are an essential worker, however, see the section below discussing the CDC’s guidance.

Notify Employees of Positive COVID-19 Test Result

If an employee tests positive for COVID-19 during the pandemic, employers should inform employees that an employee has tested positive for COVID-19 but may not reveal the identity of such employee. Employers may notify affected employees in a way that does not reveal the personal health-related information of the infected employee. For example, according to guidance from California’s Department of Fair Employment and Housing, the employer could speak with employees or send an email or other written communication stating:

[Employer] has learned that an employee at [office location] tested positive for the COVID-19 virus. The employee received positive results of this test on [date]. This email is to notify you that you have potentially been exposed to COVID-19 and you should contact your local public health department for guidance and any possible actions to take based on individual circumstances.

Other than communicating the positive test result, employers may not, however, discuss the infected employee’s health status with other employees. The employer must maintain strict confidentiality of the infected employee’s name and health condition.

Maintain a Clean, Safe & Healthy Workplace

Employers must be complying with all safety and health regulations, including as required by the Occupational Safety and Health Administration (“OSHA”) and its Guidance on Preparing Workplaces for COVID-19. This may include closing a location known to have been infected, if necessary, for proper cleaning and disinfecting. The CDC recommends waiting up to 24 hours before beginning cleaning and disinfection.

Essential Workers: The CDC has issued relaxed guidelines for critical infrastructure workers, as previously defined by the Cybersecurity and Infrastructure Security Agency, who have been potentially exposed to COVID-19. Under the relaxed guidelines, essential workers potentially exposed to COVID-19 may continue to work following exposure provided they remain symptom-free and employers implement precautions to protect the employee and the community (e.g., pre-screen, regular monitoring, wearing a mask, social distancing, and routinely disinfecting and cleaning work spaces).

If your employer is not following the above precautions and/or the workplace is objectively unsafe or unhealthy, and your employer is nevertheless forcing you to report to work, it could be in violation of OSHA and California’s labor laws, such as Labor Code §§6400, 6402 (“No employer shall require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful”).

If you feel your employer is forcing you to work in an unsafe or unhealthy workplace, contact attorneys at Haeggquist & Eck, LLP to learn more about your rights.

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

Frequently Asked Questions Regarding Covid-19 Testing At Work

As California slowly opens back up amidst the ongoing COVID-19 pandemic, employees are left wondering how they will be protected from the virus if they are required to report back to work. The Center for Disease Control (CDC) recommends that employers in non-healthcare workplaces incorporate testing, combined with symptom screening and contact tracing, as part of a comprehensive approach to timely identify infected workers so that actions can be taken to slow and stop the spread of the virus. As explained in our prior blogs, employers can require COVID-19 testing to determine whether employees are currently infected but cannot require COVID-19 antibody testing to (not-so-reliably) determine whether an employee was previously infected.

Can I Get Fired For Refusing Covid-19 Testing?

Assuming the employer may properly require a test in the first place, the answer depends on the reason for refusing testing. If an employee objects to testing for religious reasons, or because of a disability or disabling medical condition, then existing anti-discrimination laws may require the employer to accommodate the employee. If the employee’s objections are purely personal, then the employer could be justified in disciplining the employee, because such personal objections are not protected by anti-discrimination laws.

These rules would not apply to any mandatory antibody testing because antibody testing is not a useful method of infection control in the context of workplace testing.

Can My Employer Require Me To Get Tested Daily?

Employers may properly take certain daily steps to monitor employees for potential coronavirus infection. For example, employers may take employee temperatures or administer a daily questionnaire about COVID-19 symptoms or exposure. Administering a clinical test every day would probably be considered excessive for most workplaces, although certain workplaces that pose substantial risk for community spread might warrant testing of some or all employees on a routine basis.

Some commercially available antibody tests have been advertised as giving rapid results, so an employer might want to use such tests on a daily basis. The CDC and other health experts question the reliability and usefulness of antibody testing, and, even if it proves accurate, antibody testing does not necessarily indicate whether an employee has or might transmit coronavirus. Because of these two facts, antibody tests are not useful to an employer’s desire to mitigate coronavirus community transmission, so employers cannot require employees to take antibody tests on any basis.

How Many Times Can My Employer Require Me To Get Tested?

The answer depends on the type of test administered by the employer. Based on current guidance from the Equal Employment Opportunity Commission and the Centers for Disease Control, employers may never use a so-called antibody test to detect SARS-2-CoV infection because the test does not provide information that is useful to employers.

Tests that detect active coronavirus infections are most useful for controlling COVID-19 community spread in the following scenarios: (1) testing employees who show symptoms of COVID-19 infection; or (2) testing employees who have been potentially exposed to COVID-19. As of July 20, 2020, the CDC stopped recommending the use of tests before employees return to work after a confirmed coronavirus infection. Instead, CDC suggests ending self-isolation 10 days after an employee receives a positive test result, at which point the employee could safely return to work without being tested.

Some workplaces might warrant routine testing if, for example, the workplace creates a high risk of coronavirus transmission because the workers are housed together, or work in close proximity under situations where social distancing is not practical. Workers in essential industries might also be properly subject to routine testing because catching potential outbreaks in their infancy is more important to such workplaces. In any case, the details of the particular workplace would determine the proper scope of routine testing.

If My Employer Requires Me To Take A COVID-19 Test, Do I Need To Pay For It?

Generally, the FFCRA and CARES Act require group and individual health insurance plans, including employer health plans, cover COVID-19 detection and diagnostic testing. Under both Acts, the following tests would be covered without cost-sharing by the employee:

  • Tests approved by the Food and Drug Administration
  • Tests provided by labs on an emergency basis
  • State-developed tests
  • All other Health and Human Services approved tests

This also requires that plans and issuers must cover multiple diagnostic tests and facility fees/related items to the COVID-19 testing (e.g., chest x-rays, and other flu tests). Additionally, all other comprehensive private health insurance plans must cover items and services relating to COVID-19 diagnostic testing that were furnished on or after March 18, 2020 through the end of the public health emergency. However, an employee’s insurance was only required to cover the cost of testing when ordered by the individual’s health care provider for diagnostic purposes, as determined by the individual’s healthcare provider. Furthermore, the Department of Human Services has stated that “testing conducted to screen general workplace health and safety … is beyond the scope of … the FFCRA.”

When Does My Employer Have To Pay For My Testing?

If an employee is not covered by an applicable group insurance plan, the EEOC’s guidance regarding the ADA may require an employer pay for the COVID-19 test. Under the EEOC’s guidance, an employer may require an employee, who the employer reasonably believes will pose a “direct threat” to the workplace, be examined by an appropriate health care professional. “An employer also must pay all costs associated with the employee’s visit(s) to its own health care professional.”

Does My Employer Have To Pay For The Time It Takes To Get Tested and the Time It Takes To Wait For My Results?

The FLSA informs employers that, “[w]henever you impose special tests, requirements or conditions that your employee must meet, time he or she spends traveling to and from the tests, waiting for and undergoing these tests, or meeting the requirements is probably hours worked.” As such, an employer may be need to pay you for the time it takes to get tested and wait for results.

Can My Employer Share my Health Information such as COVID-19-Related Symptoms or Test Results? What if They Wrongfully Disclose this Information?

In short, aside from alerting other employees of possible exposure to the virus, all other information must remain confidential.

Under both federal and California law, employers are required to keep confidential all employee health information obtained, including keeping employee medical files separate from personnel files to lessen the risk of inadvertently disclosing confidential health information. As this relates to COVID-19 and the CDC-recommended symptom screening, testing, and contact tracing, the Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”) have issued the following guidance on the types of information that employers must keep confidential:

  • An employee’s statement that he or she has or suspects he or she has COVID-19;
  • Any COVID-19 symptoms the employee is experiencing, including the employer’s notes or other documentation from questioning an employee about symptoms;
  • An employee’s body temperature;
  • The reason for an employee’s absence if due to illness or other medically related reason; and
  • All COVID-19 test results.

If an employee tests positive for or is suspected to have COVID-19, the employer may notify potentially affected employees, but only in a way that does not reveal the employee’s identity or any other identifiable information. The employer may, however, disclose the name of a COVID-19 positive employee to a public health agency.

If your employer wrongfully discloses your confidential health information, they may have violated the federal Americans with Disabilities Act or state law. For example, California’s Confidentiality of Medical Information Act (“CMIA”) prohibits employers from using, disclosing, or knowingly permitting its employees or agents to use or disclose employee medical information without a signed authorization, subject to several statutory exceptions. If unauthorized disclosure occurs, an employee who has sustained economic loss or personal injury may recover compensatory damages and legal costs, and a limited amount of punitive damages and attorneys’ fees. However, based on the CMIA’s definition of “medical information,” it only applies to information “in possession of or derived from a provider of health care, health care service plan, pharmaceutical company, or contractor.” Arguably, disclosure of COVID-19 test results received from a health care provider would qualify while symptoms or body temperature obtained by the employer during preventative screening would not.

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

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